Claimant moves to strike defendant’s answer or, in the alternative, grant
claimant a missing document charge. Defendant
The claim alleges that SUNY Downstate
Medical Center (“Downstate”) was negligent in its pre-natal
treatment of Simona Graham on July 13 and 14, 1996, its delivery of her infant
Monee McKenzie on July 14, 1996, and its neonatal care of the infant from
July 14, 1996 through August 8, 1996 as a result of which claimant
suffered brain damage and other severe and permanent injuries.
Ms. Graham underwent a Caesarean section at Downstate after an alleged
period of fetal distress. Claimant contends during labor and delivery the
mother was monitored by an internal and external fetal heart monitor which
recorded results on strips of paper. According to an affidavit by Sonia
Davidson, Downstate’s Director of Health Information Management, attached
to claimant’s motion, the fetal heart monitoring strips in this case have
been missing since at least January 2005 when the medical records of mother and
child were retrieved from archival storage at Comprehensive Archives, an outside
company. Ms. Davidson further attests that the fetal heart monitoring
strips cannot be found any place within the hospital where such materials
normally may be located or in approximately 100 boxes of unidentified
strips stored off-site at another outside storage company, Citistorage.
Claimant argues the loss of the fetal heart monitoring strips was negligent and
itself a departure from good and accepted medical practice, thereby subject to
the penalties of CPLR 3126 (3).
have routinely stricken the pleadings of a ‘spoliator’ whose
destruction of proof has resulted in a severe handicap to its opponents,
regardless of whether the destruction was wilful or simply negligent.”
DiDomenico v C & S Aeromatik Supplies
, 252 AD2d 41, 43 (2d Dept
1998). Particularly, a “Hospital’s negligent loss of the fetal
monitoring strips warrants striking its answer [because] . . . the fetal
monitoring strips would give fairly conclusive evidence as to the presence or
absence of fetal distress, and their loss deprives the plaintiff of the means of
proving her medical malpractice claim against the Hospital.” Baglio v
St. John’s Queens Hosp.
, 303 AD2d 341, 342-343 (2d Dept 2003).
Additionally, claimant references several cases where a court allowed a missing
document/negative inference charge when relevant evidence had been lost by a
party without adequate explanation. See e.g. Martelly v New York City Health
& Hosps. Corp.
, 276 AD2d 373, 373-374 (1st Dept 2000) (“The trial
court properly gave a missing document charge regarding the fetal monitor
strips, since plaintiffs adduced evidence that such documents existed and had
been in defendant's control, and defendant advanced no adequate explanation for
The affidavit of Richard Luciani, M.D., claimant’s medical expert,
attached to claimant’s papers, states: “It is my opinion, to a
reasonable degree of medical certainty, that the fetal heart monitoring strips
are significant to determining obstetrical malpractice.” While this
cryptically drawn affidavit arguably is unclear as to whether this physician was
addressing the evidentiary value of fetal monitoring strips generally as opposed
to their importance to claimant in proving the specific case here (defendant so
asserts), the claim does allege, with specificity, a failure to have recognized
and addressed the signs of fetal distress.
The affidavit of defendant’s medical expert, Leonard Benedict, M.D.,
states “to a reasonable degree of medical certainty, that the fetal heart
monitoring strips do not constitute key or critical evidence as to the cause of
the claimant’s underlying medical condition.” After delving into
the medical circumstances of the labor and birth at issue, Dr. Benedict
concludes “to a reasonable degree of medical certainty, the infant’s
medical condition is due to a congenital defect which is unrelated to the labor
and delivery.” This physician’s view of the case undoubtedly will
be one of the central issues of fact to be resolved at trial. In no way,
however, is it persuasive as to why the fetal monitoring strips would not be
important evidence which bears on claimant’s view of the case (based on
the allegations of the claim and the bill of particulars) that labor and
delivery issues were at the core of the infant’s condition. Indeed,
defense counsel’s own affidavit tends to support this view by arguing that
a missing document charge would be inappropriate here because defendant also
will be disadvantaged by the absence of the missing strips.
There is no dispute that fetal heart monitoring strips were created during the
subject labor and delivery, they were under defendant’s control and their
disappearance remains unexplained. This can be sufficient to support an adverse
inference charge in an appropriate case. Acevedo v New York City Health
& Hosps. Corp., 251 AD2d 21, 22 (1st Dept 1998) (“Nor is there
merit to defendants' claim that the trial court’s missing document charge
was improper, since there was evidence that the missing fetal monitor strips
existed and had been in defendants’ control, and defendants advanced no
adequate explanation for their nonproduction”); Scaglione v Victory
Mem. Hosp., 205 AD2d 520, 521 (2d Dept 1994) (“A party who seeks an
adverse inference charge against an opponent who fails to produce a document
must make a prima facie showing that the document in question actually
exists and that it is under the opposing party’s control [citations
omitted]. The party requesting the charge must also show that the adverse party
has no reasonable explanation for not producing the document”).
Defendant alleges it has made diligent efforts to locate the fetal heart
monitoring strips which were found to be missing nine years after the events at
issue, although absent from both of Ms. Davidson’s affidavits are
facts about when the records initially were sent to the first storage company,
Comprehensive Archives, and what defendant did to search for them there after
they were recognized as missing in January 2005. The search of
unidentified strips to which Ms. Davidson refers was of 100 boxes
which had been stored at the second storage company, Citistorage.
This court notes that this case is the second before it involving Downstate
where evidence pertaining to malpractice litigation cannot be located. While
there was no showing of intentional wrongdoing in the previous case and, at this
juncture, no indication of wrongful intent here, the disappearance of records
known to have existed and that may be important evidence presents questions of
possible negligent record preservation and handling practices at this hospital.
Before the court can consider whether to order either of the drastic remedies
sought by the claimant in this case, it is appropriate first to conduct an
evidentiary hearing as to what is known to have happened during the chain of
custody, and what has and has not yet been done to locate the missing strips.
That this claim was not brought until 2006, ten years after the birth of the
infant, also may be relevant in considering the totality of defendant’s
Accordingly, an evidentiary hearing will be conducted at which defendant is
ordered to produce representatives with knowledge and authority of
Downstate’s records management policies and practices generally, what they
were specifically in 1996 and whether they changed since that time (if so, how
and when), and the facts pertaining to the records and strips in this case .
The parties are directed to contact chambers to schedule the hearing.