| Madkins v State of New York |
| 2011 NY Slip Op 02637 [82 AD3d 1174] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Kylah Madkins, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek, BenjaminN. Gutman, and Sudarsana Srinivasan of counsel), for respondent.
In a claim to recover damages for medical malpractice, the claimant appeals from an order ofthe Court of Claims (Marin, J.), dated March 22, 2010, which granted the defendant's motion tocompel the claimant to provide a certificate of merit pursuant to CPLR 3012-a and denied theclaimant's cross motion to strike the answer on the ground of spoliation of evidence.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof denying the claimant's cross motion to strike the answer of the defendant onthe ground of spoliation of evidence, and substituting therefor a provision granting that crossmotion only to the extent of directing that an adverse inference charge be given at trial withrespect to the fetal heart monitoring strips; as so modified, the order is affirmed, with costspayable by the defendant.
The claimant failed to demonstrate that the defendant's loss of the fetal heart monitoringstrips in this case left her prejudicially bereft of evidence to prosecute her malpractice claim.Rather, the medical record, which includes progress notes, some references to the fetal heart rateat certain points in the mother's brief labor, and other relevant evidence, established that theclaimant's ability to pursue her claim was not fatally compromised so as to warrant the drasticsanction of striking the defendant's answer (see Rodman v Ardsley Radiology, P.C., 80AD3d 598 [2011]; Coleman v Putnam Hosp. Ctr., 74 AD3d 1009, 1011 [2010]; Gottov Eusebe-Carter, 69 AD3d 566, 568 [2010]; cf. Baglio v St. John's Queens Hosp.,303 AD2d 341, 342-343 [2003]). However, the defendant's failure to preserve the fetal heartmonitoring strips as required by regulation (see 10 NYCRR 405.10 [a] [4]), and theresulting prejudice to the claimant, warrants the imposition of the lesser sanction of an adverseinference charge to be given at trial (see e.g. Rodman v Ardsley Radiology, P.C., 80AD3d 598 [2011]; Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814, 815-816[2010]; Coleman v Putnam Hosp. Ctr., 74 AD3d 1009, 1012 [2010]; Gotto vEusebe-Carter, 69 AD3d at 568).
In view of the foregoing, the Court of Claims properly granted the defendant's motion tocompel the claimant to provide a certificate of merit pursuant to CPLR 3012-a. Mastro, J.P.,Chambers, Lott and Cohen, JJ., concur.