| Coleman v Putnam Hosp. Ctr. |
| 2010 NY Slip Op 05352 [74 AD3d 1009] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Christopher Coleman, Respondent-Appellant, v PutnamHospital Center et al., Appellants-Respondents, et al., Defendant. |
—[*1] Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), forappellants-respondents Marcel Goldberger and Obstetrical & Gynecological Associates ofPutnam, P.C. Gary Greenwald, Chester, N.Y. (David A. Brodsky and Marc Leffler of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for medical malpractice, (1) the defendantsMarcel Goldberger and Obstetrical & Gynecological Associates of Putnam, P.C., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Putnam County(O'Rourke, J.), dated September 8, 2008, as denied that branch of their motion which was forsummary judgment dismissing the complaint insofar as asserted against them, and the plaintiffcross-appeals, as limited by his brief, from so much of the same order as denied those branchesof his cross motion which were to strike the answer of those defendants on the ground ofspoliation of evidence and for an inquest on damages, and (2) the defendant Putnam HospitalCenter separately appeals, as limited by its brief, from so much of an order of the same court,also dated September 8, 2008, as denied its cross motion for summary judgment dismissing thecomplaint insofar as asserted against it, and the plaintiff cross-appeals, as limited by his brief,from so much of the same order as denied his cross motion to strike that defendant's answer onthe ground of spoliation of evidence and for an inquest on damages.
Ordered that the first order dated September 8, 2008, is affirmed insofar as appealed andcross-appealed from; and it is further,
Ordered that the second order dated September 8, 2008, is modified, on the law, by deletingthe provision thereof denying the plaintiff's cross motion to strike the answer of the defendantPutnam Hospital Center on the ground of spoliation of evidence and for an inquest on damages,and substituting therefor provisions (1) granting that cross motion only to the extent of directingthat an adverse inference charge be given at trial with respect to the fetal heart monitor [*2]data, and otherwise denying that cross motion, and (2) directingthat the adverse inference charge shall instruct as follows: "The defendant Putnam HospitalCenter was required by the law of this state to maintain the fetal heart monitor strips and failed todo so without adequate explanation. Accordingly, in weighing the evidence, you may, althoughyou are not required to, infer that the fetal heart monitor strips would not have supported thedefendant Putnam Hospital Center on the question of whether the plaintiff had fetal heartdecelerations and/or variability and would not contradict the evidence offered by the plaintiff onthat question, and you may, although you are not required to, draw the strongest inferenceagainst the defendant Putnam Hospital Center on that question which the opposing evidencepermits"; as so modified, the second order dated September 8, 2008, is affirmed insofar asappealed and cross-appealed from, and the matter is remitted to the Supreme Court, PutnamCounty, for further proceedings consistent herewith; and it is further,
Ordered the plaintiff is awarded one bill of costs payable by the defendant Putnam HospitalCenter.
Christopher Coleman, by his mother and natural guardian, Mary Ann Coleman, commencedthis action against, among others, the defendant Putnam Hospital Center (hereinafter theHospital) and the defendants Marcel Goldberger and Obstetrical & Gynecological Associates ofPutnam, P.C., to recover damages for injuries allegedly sustained at the time of his birth, duringlabor and delivery, due to oxygen deprivation. The plaintiff alleged in his bill of particulars thatthe defendants were negligent, inter alia, in failing to properly diagnose fetal distress. The nurses'notes indicate decelerations in fetal heart rate at various times during the course of labor. At sixmonths of age, the plaintiff underwent surgery for hydrocephalus. He was later diagnosed withcertain cognitive deficits, which, he contends, were caused by oxygen deprivation at the time oflabor and delivery.
The record establishes that the Hospital failed to preserve the fetal monitor strips generatedin connection with the plaintiff's birth, in violation of 10 NYCRR 405.10 (a) (4). Goldbergertestified at his deposition that he did not know the whereabouts of the fetal heart monitor strips,and that it was not his custom and practice to maintain a copy of the strips in his private office.
The plaintiff claims that the fetal monitor strips constitute crucial evidence without which heis unable to prove his case and that only the remedy of striking the respondents' answers willameliorate the prejudice caused by spoliation. Under the common-law doctrine of spoilation,when a party negligently loses or intentionally destroys key evidence, thereby depriving thenonresponsible party of the ability to prove its claim or defense, the responsible party may besanctioned by the striking of its pleading (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]; Baglio vSt. John's Queens Hosp., 303 AD2d 341, 342 [2003]; DiDomenico v C & S AeromatikSupplies, 252 AD2d 41, 53 [1998]; Squitieri v City of New York, 248 AD2d 201,202 [1998]). Here, because the hospital chart contains nurses' notations specifying the fetal heartrate at certain times during the course of labor, the plaintiff failed to clearly establish that theunavailability of the fetal heart monitoring data " 'fatally compromised [his] ability' " toprosecute this action (Gotto vEusebe-Carter, 69 AD3d 566, 568 [2010], quoting Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718 [2009];see Dessources v Good SamaritanHosp., 65 AD3d 1008 [2009]; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d 719, 722[2009]). However, because the Hospital failed to offer any excuse for its failure to preserve thefetal monitor strips in violation of 10 NYCRR 405.10 (a) (4), the Supreme Court should havegranted the plaintiff's cross motion to the extent of directing that an adverse inference charge begiven at trial with respect to the fetal heart monitor data (see Dennis v City of New York, 18 AD3d 599, 600 [2005]; Barahona v Trustees of Columbia Univ. inCity of N.Y., 16 AD3d 445 [2005]; Allstate Ins. Co. v Kearns, 309 AD2d [*3]776 [2003]).
Here, because the absence of the fetal heart monitor strips places the plaintiff at a significantdisadvantage in proving his claim that he suffered from oxygen deprivation, the plaintiff isentitled to an adverse inference charge at trial with respect to the fetal heart monitor strips inaccordance with our directive herein (see Gotto v Eusebe-Carter, 69 AD3d 566 [2010]; Tapia v Royal Tours Serv., Inc., 67AD3d 894 [2009]; Barone v City ofNew York, 52 AD3d 630, 631 [2008]).
The Supreme Court properly denied that branch of the plaintiff's cross motion which was tostrike the answer of the defendants Marcel Goldberger and Obstetrical & GynecologicalAssociates of Putnam, P.C. (hereinafter together Goldberger), as the record reveals thatGoldberger had no responsibility for maintaining the fetal heart monitor strips.
With respect to the summary judgment motions, the Hospital and Goldberger each made aprima facie showing that neither of them departed from accepted medical practice. However, inopposition, the plaintiffs submitted the affirmation of an expert, Dr. Don Sloan, who stated, interalia, that medical records indicated that fetal heart monitoring showed that there were times ofdecelerations and variability which, "may at times, hallmark oxygen deprivation to the infantduring the labor and delivery process." This affidavit, together with the absence of the fetal heartmonitor strips, requires us, under these particular circumstances, to find that there are triableissues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Adjetey v New York City Health & Hosps.Corp., 63 AD3d 865 [2009]; Shields v Baktidy, 11 AD3d 671, 672 [2004]; Barbuto vWinthrop Univ. Hosp., 305 AD2d 623, 624 [2003]). Accordingly, the separate motions ofthe Hospital and Goldberger for summary judgment dismissing the complaint were properlydenied. Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.