In its opinion filed on January 17, 2018, the Appellate Division of the Supreme Court of New York, Second Department (“New York Appellate Court”) held: “we now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover Punitive Damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct. Thus, the Supreme Court did not err in submitting the issue of punitive damages to the jury.”

The Underlying Facts

This New York medical malpractice wrongful death case arose from the death of a six-year-old child, who developed diabetic ketoacidosis after the defendant endocrinologist failed to diagnose the child’s type I diabetes. Trial evidence established that the defendant endocrinologist saved the original, handwritten notes memorializing her first visit with the child, but, after receiving the letter from the plaintiff’s attorney’s firm, she destroyed the original, handwritten notes memorializing her two subsequent visits with the child. Trial evidence further established that the typewritten record of the initial visit included information not reflected in the handwritten record of that visit: the typewritten record of that visit indicated “[n]o polyuria, no polydipsia.” The handwritten record did not indicate that the defendant endocrinologist asked about polyuria, excessive urination, or polydipsia, excessive thirst (excessive urination and excessive thirst are both symptoms of diabetes). Further, it appears that a finding of acanthosis nigricans, which can be a sign of insulin resistance, was indicated in the typewritten record but not in the handwritten record. Lastly, there was a discrepancy regarding when the child was to return to see the defendant endocrinologist following the third visit.

The New York medical malpractice jury determined that the defendant endocrinologist departed from accepted medical practice in the diagnosis, care, or treatment of the child, and that this departure was a substantial factor in causing the injury that resulted in the child’s death. The jury awarded damages in the amounts of $400,000 for the child’s pain and suffering and $100,000 for monetary loss sustained as a result of the child’s death. Additionally, the jury found that the plaintiff was entitled to punitive damages against the defendant endocrinologist. Following a separate trial on the amount of punitive damages to be awarded, the jury awarded punitive damages against the defendant endocrinologist in the sum of $7,500,000. The defendant appealed.

The New York Appellate Court Opinion

The New York Appellate Court rejected the defendant’s argument that punitive damages cannot be recovered because the defendant’s destruction of original medical records did not contribute to causing the child’s death. The New York Appellate Court stated, “But here, the jury found that [the defendant] committed malpractice in her treatment of the child. That [the defendant] destroyed the original records after [the child] died does not mean that punitive damages were awarded for conduct unconnected to the malpractice. The award of compensatory damages for [the defendant’s] departure from the standard of care that was a substantial factor in causing injury that resulted in [the child’s] death served as a foundation for the award of punitive damages for [the defendant’s] attempt to evade liability for that malpractice by destroying original records of her treatment of the child.”

The New York Appellate Court also rejected the defendant’s argument that punitive damages cannot be recovered because the defendant’s destruction of original records did not prevent the plaintiff from successfully prosecuting this action: “The fact that the plaintiff was able to prove the medical malpractice cause of action against [the defendant], despite [her] destruction of original records, should not insulate [the defendant] from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort.”

Nonetheless, the New York Appellate Court concluded that the $7,500,000 punitive damages awarded by the New York medical malpractice jury was excessive. The New York Appellate Court therefore remanded the case to the New York Supreme Court trial division, for a new trial on the issue of punitive damages unless, within 30 days the plaintiff files in the office of the Clerk of the Supreme Court a written stipulation consenting to reduce the punitive damages award from the principal sum of $7,500,000 to the principal sum of $500,000. In the event that the plaintiff files such a stipulation, the New York Appellate Court stated that the order, as so amended, is affirmed.

Source Gomez v. CABATIC, 2018 NY Slip Op 00278

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