|Claimant(s):||KYLAH MADKINS, by her Mother and Natural Guardian, TONYA BYER|
|Claimant short name:||MADKINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Offices of Regina Darby, Esq.
By: Mark A. Marino, Esq. and Michael Zogala, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Donna R. Silverglad, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||March 22, 2010|
|See also (multicaptioned case)|
In this claim, it is alleged that in connection with Kylah Madkins' birth at SUNY Downstate Medical Center on July 23, 1995, defendant committed medical malpractice by, inter alia, performing a contraindicated cesarian section, resulting in injuries including cerebral palsy and developmental disability. Defendant moves for an order compelling claimant to provide a certificate of merit pursuant to CPLR §3012-a. Claimant cross-moves to strike defendant's answer(1) on the ground that defendant has failed to provide the fetal heart monitoring strips from Kylah's birth. Claimant characterizes the strips as crucial to her case and maintains that their loss "completely deprives the [claimant of] the means of proving her case."
This claim was filed on July 24, 2007, approximately 12 years after Kylah's birth. Thereafter, on or about September 27, 2007, claimant served disclosure demands which included a request for the fetal monitoring strips. In an affidavit dated April 15, 2008, Sonia Davidson, the Director of Health Information Management at SUNY Downstate, states that she conducted a search for the strips and that "[t]he strips cannot be found at Downstate in the locations where hospital records, including fetal monitoring strips, are normally stored. A further search for the strips was conducted by having Citistorage, LLC (located at 5 North 11th Street, Brooklyn, NY) [sic]. In addition, approximately 100 boxes containing all unidentified strips were delivered to Downstate. My staff then searched each box and identified all the strips. However, the strips pertaining to Claimant were not found. . . As far as I am aware, there is nowhere else that the strips pertaining to Claimant can be located."
With regard to her motion to strike defendant's answer, claimant has submitted the affirmation of Elliot M. Newhouse, M.D., who explains that "[f]etal monitoring strips are utilized to assess the fetal heart rate and [its] relationship . . . to maternal contractions in order to evaluate fetal well-being. The strips are analyzed to determine whether there is a 'fetal distress'
. . . which is caused by a lack of oxygen . . ."
Dr. Newhouse maintains that "[t]he medical records are incomplete without the fetal monitoring strips," which he states are "dispositive evidence in determining fetal well-being." He adds that, "without the information contained in the fetal monitoring strips a determination of the fetal status, well-being and proper treatment cannot be determined. As a result, I cannot determine from the available medical records whether the care received by the Claimant was within the accepted standards of medical practice."
Dr. Newhouse further states that "[t]he medical records for Claimant contain very little information concerning fetal well-being," although he finds that certain factors in the records (apgar of 1 minutes, an indication of "emergency cesarian section," and "questionable variable decelerations" do indicate fetal distress. He explains that the records give no indication as to why there was distress, and that the fetal monitoring strips "would provide conclusive evidence as to the presence or lack of fetal distress, i.e., "[w]ithout the fetal monitoring strips[,] one can only speculate regarding the degree, duration and impact of fetal distress . . ."
Finally, Dr. Newhouse asserts that "[t]he fetal monitoring strips are crucial to proving fetal distress and the urgency of the situation, and their loss completely deprives the [claimant] of the means of proving her medical malpractice claim."* * *
Defendant disagrees with claimant's assessment of the need for the fetal monitoring strips and submits the affirmation of its expert doctor(2) that the extant medical records "permit a detailed examination and comprehensive understanding of the events which took place during the approximately one (1) hour and forty-three (43) minute labor." Defendant's expert explains as follows:
Specifically, the record reflects that the patient arrived at the hospital at approximately 6:45 p.m. with complaints of contractions since 1:00 p.m. The admission note indicates that the fetal heart rate was in the 150s and reactive with questionable variable decelerations. A sonogram was done and the fetus was found to be a footling breech. At 7:10 p.m. the fetal heart rate was in the 130s with contractions every 5 - 7 minutes . . . Additionally, at 7:10 p.m. the patient was consulted regarding the type of Cesarean Section that will be performed and consent was signed. Anesthesiology notes indicate that a discussion was had with the claimant regarding the type of anesthesia to be given and claimant agreed to spinal anesthesia. Claimant then signed consents. At 7:28 p.m. there is a note that claimant was encouraged to ask questions and every procedure is being explained to her as necessary. At 7:50 p.m., claimant was transferred to the operating room and assisted to the table, spinal anesthesia was started . . . At 8:18 p.m., the Cesarean Section was started and at 8:28 p.m. the infant claimant was delivered. At 9:05 p.m., the procedure ended and claimant was taken to the recovery room.
According to defendant's doctor, "[t]he crux of claimant's claim is that the defendant failed to arrest (prolong) pre-term labor . . . this claim lacks merit. Claimant presented . . . at a time when she was 5-6 centimeters dilated. At this point, labor cannot be arrested . . . claimant's allegation that the . . . Cesarean Section was contraindicated is also meritless. At the time of admission, the fetus was in footling breach, which causes a risk of prolapsed cord making imminent delivery via Cesarean Section before membrane could rupture necessary and imperative" (footnotes omitted).
Defendant's doctor further argues that the records indicate that the Cesarean Section was timely performed and that the injuries claimed "can be wholly attributable to the infant claimant's premature birth, which . . . could not and should not have been arrested . . ." The doctor concludes that "the fetal monitoring strips [here] are not essential to the understanding and evaluation of this case."* * *
Claimant cites Baglio v St. John's Queens Hosp., 303 AD2d 341, 343 (2d Dept 2003), in which the Second Department, having found that the defendant hospital negligently lost the monitoring strips, held that, "under the facts of this case, 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 . . ."
The hospital was required to retain the fetal monitoring strips, and defendant does not dispute such. 10 NYCRR §405.10(a)(4). With that said, claimant did not clearly establish that Downstate Medical Center negligently lost or intentionally destroyed the Madkins-Byer monitoring strips. See Gotto v Eusebe-Carter, 69 AD3d 566, 568 (2d Dept 2010). Moreover, given the affidavits of each party's expert, this Court cannot conclude that claimant is unable to prove a departure from accepted practice without the fetal monitoring strips. In Dessources v Good Samaritan Hospital, 65 AD3d 1008 (2d Dept 2009), lv denied 13 NY3d 713 (2009), the Second Department found that the trial court had not abused its discretion in denying plaintiff's motion to strike the hospital's answer after it was unable to locate the fetal monitoring strips.
A more appropriate course than striking the defendant's answer can be the less severe sanction of an adverse inference. Gotto, supra; Martelly v New York City Health and Hospitals Corp., 276 AD2d 373 (1st Dept 2000); Acevedo by Rodriguez v New York City Health & Hospitals Corp. 251 AD2d 21 (1st Dept 1998), lv denied 92 NY2d 808 (1998).
With regard to the certificate of merit, claimant had argued that defendant's motion is "not ripe" because she has asked for a full set of records, including the fetal monitoring strips, but has not yet received the strips (relying on subdivision (d) of CPLR §3012-a), but the foregoing has rendered the issue moot.* * *
In view of the above, having reviewed the submissions(3) , IT IS ORDERED THAT motion no. M-76659 be granted and that claimant's certificate of merit be provided to defendant within ninety (90) days of the filing of this Decision and Order; and IT IS FURTHER ORDERED that cross- motion no. CM-76666 be denied.
March 22, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. In her cross-moving papers claimant sought an order striking the answer or in the alternative, compelling a hospital representative to testify as to the missing strips. At a conference on the record on May 13, 2009, claimant withdrew her request for the alternative relief and indicated that she sought only to strike defendant's answer.
2. While providing an original affirmation to the Court with its expert's name, defendant has redacted the name in its filed and served papers, citing CPLR §3101(d).
3. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through E; claimant's "Opposition to Defendant's Motion to Compel and Cross-Motion to Strike Defendant's Answer or Compel Testimony" with exhibits A through E; defendant's "Affirmation in Opposition to Claimant's Cross-Motion to Strike Defendant's Answer and Reply Affirmation" with exhibits A through E; and claimant's "Reply to Defendant's Opposition" with exhibits A through D.