New York State Court of Claims

New York State Court of Claims
AVILA v. THE STATE OF NEW YORK, # 2010-036-605, Claim No. 116090, Motion No. M-76965


Case information

UID: 2010-036-605
Claimant(s): ESTEBAN AVILA, an Infant by his Mother and Natural Guardian, DAMARIS DAVIDSON, a.k.a. DAMARIS AVILA
Claimant short name: AVILA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116090
Motion number(s): M-76965
Cross-motion number(s):
Claimant's attorney: FITZGERALD & FITZGERALD, P.C.
By: Liu-Ming Chen, Esq.
By: Steven C. Kletzkin, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 29, 2010
City: New York
Official citation:
Appellate results:
See also (multicaptioned case)


This is claimant's motion to strike defendant's answer in a medical malpractice action in connection with the birth of claimant's son at Downstate Medical Center. The basis for the motion is that defendant has failed to produce requested hospital records, including fetal heart monitoring strips (FHMS).(1) Claimant also moves to strike certain affirmative defenses in defendant's answer which allege her claim should be dismissed for failure to plead with requisite particularity. Defendant does not oppose claimant's motion to strike the affirmative defenses, and, accordingly, the court grants that part of her motion and the first, sixth, seventh, eighth and tenth affirmative defenses are ordered stricken.

Turning to claimant's motion to strike defendant's answer, claimant contends that defendant has failed to produce prenatal care records, lab test results for the labor and delivery period and the FHMS. The claim attaches a Notice of Intention to File a Claim served upon defendant on August 15, 2006 (the "Notice"), which alleges that claimant Damaris Avila and her fetus received care and treatment at Downstate from January 1999 through the time of her son Esteban's delivery on February 26, 1999, and that Esteban then received neonatal care and treatment and pediatric care at Downstate until his date of discharge on June 8, 1999. See Ex. 1 to the Attorney Affirmation of Liu-Ming Chen, dated July 8, 2009 ("Supporting Affirmation"). The claim was amended on November 26, 2008 to include a certificate of merit. Ex. 2 to Supporting Affirmation. The Notice alleges:

The claim arose as a result of the negligence and medical malpractice in the treatment and management of the pre-natal, labor & delivery, neonatal and pediatric care provided to claimants. The exact departures are not fully known to claimants at this time, as claimants were unable to obtain complete medical records prior to the date of this filing. Upon information and belief, these departures include failure to properly and timely examine and treat the claimant DAMARIS AVILA; failure to properly and timely monitor the claimants; failure to timely deliver the infant claimant; failure to have the claimant's labor and delivery attended by competent and qualified obstetricians; failure to provide proper newborn care and failure to maintain and keep medical records. Claimants reserve their right to file an Amended Claim at a later date.

The Notice alleges that Esteban suffered mental retardation, brain damage and other severe injuries and that Damaris has suffered the loss of her son's services and companionship due to defendant's negligence.

On August 16, 2006, claimant requested all medical records relating to the allegation contained in the Notice. Defendant failed to comply with the request, and claimant moved to compel. On May 29, 2008 Judge Soto of this court issued a Decision and Order admonishing defendant for its "cavalier" response to claimant's request and ordered defendant to produce the requested discovery. See Ex. 6 to Supporting Affirmation. After a stipulation to produce and numerous requests at a preliminary conference before this court, on May 7, 2009, the court invited claimant to move to compel if defendant further failed to comply with her discovery demands. The requested documents were not forthcoming, and claimant initiated this motion.

In support of the motion, claimant submits as an attachment to the Supporting Affirmation an affirmation from Bruce L. Halbridge, a physician licensed in the State of New York and Texas, stating that he reviewed the Downstate records relating to the allegations in issue and that:

The electronic fetal heart monitoring ("FHMS") is [sic] a critical part of the obstetrical standard of care. It enables treating physicians to monitor fetal health and the need to deliver the child during the course of this high risk pregnancy, to assess the need to prepare for preterm delivery and cesarean section. FHMS are often the most critical evidence to determine fetal well being at the time of treatment, and in evaluating conduct of health care providers. I will refer to just a few of the medical authorities attesting to the importance of Fetal Heart Monitoring; these materials are attachments to the plaintiff's motion.

Defendant admits it is unable to locate the FHMS,(2) but argues that claimant's application is "fatally defective for failing to assert or establish the absence of the missing records impairs the claimant's ability to make a prima facie case." Affirmation in Opposition of Steven C. Kletzkin, dated September 7, 2009 ("Opposition Affirmation"), p 1. Defendant submits an affidavit from Leonard Benedict, M.D., a physician board-certified in obstetrics and gynecology, identifying the records he reviewed, which states:

Ultimately, it is my opinion to a reasonable degree of medical certainty that review of DAMARIS AVILA'S medical records, absent the fetal monitoring strips, permits a detailed examination and comprehensive understanding of the events which took place during the approximately three days prior to delivery.

Ex. A to Opposition Affirmation.

Claimant counters with a second affirmation from Dr. Halbridge who takes issue with Dr. Benedict's analysis and opinion in considerable detail. Dr. Halbridge, for example, states the following:

Absent the newborn records, we do not know the neonatologist(s)'s assessments and diagnoses of the newborn's condition at birth and during the extended NICU stay. All we know about the infant's condition was from the obstetrician's report of operation in which Dr. McCalla stated that the newborn was given Apgar scores of 5 and 6 for 1 and 5 minutes, was intubated and taken to NICU due to prematurity. See Exhibit 13, p. 137. There was no breakdown of the Apgar scores.

* * *

Without the newborn records, the prenatal care records, the fetal heart monitoring strips ("FHMS"), and the mother's lab reports, Dr. Benedict opines that "when viewed in totality, the notations contained within the medical chart permit a detailed examination and comprehensive understanding of the events which took place prior to and during the delivery of Esteban Avila." I cannot disagree more.

Affirmation of Bruce L. Halbridge, M.D. in Further Support of the Motion, dated September 30, 2009, attached to Reply Affirmation, dated October 2, 2009,  4-5.

Courts routinely have 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). There is no dispute that the FHMS 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").

This is the third case involving Downstate before this court where evidence pertaining to malpractice litigation could not be located.(3) While there was no showing of intentional wrongdoing in the previous cases 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 here, 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 nine 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 those practices were specifically in 1999 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.(4)

January 29, 2010

New York, New York


Judge of the Court of Claims

1. In connection with this motion the court has read and considered the Notice of Motion, dated July 8, 2009; Supporting Affirmation, dated July 8, 2009, together with exhibits, Affirmation of Bruce L. Halbridge, M.D., together with attachments; Affirmation in Opposition, dated September 7, 2009, together with Ex. A; and Reply Affirmation, dated October 2, 2009, together with Affirmation of Bruce L. Halbridge, M.D. in Further Support of the Motion, dated September 30, 2009 and Reply Ex. 1; and letter dated January 27, 2010 from Steven C. Kletzkin.

2. It is not clear whether the other requested documents have been produced. If not, this Decision and Order applies to them also.

3. In the most recent case before this court, defendant ultimately did locate the FHMS after the court conducted a hearing similar to the one the court is directing here.

4. In a letter dated January 27, 2010 defendant's counsel points out that a motion to vacate a default against Dr. McCalla, the physician who treated claimant and her son, is pending in a related Supreme Court, Kings County, action and "[Dr.] McCalla may be able to shed light on the issue of the location of any outstanding medical records." If defendant believes Dr. McCalla may have relevant information about the missing records, defendant should produce Dr. McCalla at the hearing, by subpoena if necessary.