New York State Court of Claims

New York State Court of Claims

MCKENZIE v. THE STATE OF NEW YORK, #2008-036-314, Claim No. 112863, Motion No. M-74361


Case Information

MONEE MCKENZIE, an infant by her mother and natural guardian, SIMONA GRAHAM
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
THE PAGAN LAW FIRM, P.C.By: David J. Pierguidi, Esq.
Defendant’s attorney:
By: Steven C. Kletzkin, Esq. Assistant Attorney General
Third-party defendant’s attorney:
Signature date:
March 19, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves to strike defendant’s answer or, in the alternative, grant claimant a missing document charge. Defendant opposes.[1] 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).[2] “Courts 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 their nonproduction”).

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 conduct here.

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.

March 19, 2008
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motion: claimant’s notice of motion dated December 27, 2007, together with affirmation in support and exhibits; defendant’s affirmation in opposition dated February 20, 2007 [sic] and exhibits.
[2].“If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: . . . an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.”