Opinion
518197.
10-30-2014
Kathy WEISS et al., Individually and as Parents and Guardians of Jonah Weiss, an Infant, Appellants, v. BELLEVUE MATERNITY HOSPITAL, Respondent, et al., Defendants.
Feeney, Centi & Mackey, Albany (L. Michael Mackey of counsel) and Rosenblum, Ronan, Kessler & Sarachan, Albany (Michael W. Kessler of counsel), for appellants. Petrone & Petrone, P.C., Williamsville (James H. Cosgriff III of counsel), for respondent.
Feeney, Centi & Mackey, Albany (L. Michael Mackey of counsel) and Rosenblum, Ronan, Kessler & Sarachan, Albany (Michael W. Kessler of counsel), for appellants.
Petrone & Petrone, P.C., Williamsville (James H. Cosgriff III of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, STEIN, GARRY and DeVINE, JJ.
Opinion
PETERS, P.J. Appeal from that part of an order of the Supreme Court (Clark, J.), entered August 28, 2013 in Schenectady County, which denied plaintiffs' motion to strike defendant Bellevue Maternity Hospital's answer.
In January 2000, plaintiff Kathy Weiss (hereinafter the mother) gave birth to a son at defendant Bellevue Maternity Hospital. Almost 10 years later, plaintiffs commenced this medical malpractice action alleging that defendants failed to properly manage the mother's labor and failed to timely deliver the child by cesarean section, thereby causing him to suffer a profound hypoxic brain injury that has rendered him totally and permanently disabled. During the course of discovery, plaintiffs learned that the mother's labor and delivery records had been destroyed in 2008 pursuant to the records retention policy of Bellevue's successor, Ellis Hospital. Plaintiffs thereafter moved to strike Bellevue's answer on the grounds of spoliation of evidence, as well as its failure to fully comply with court orders concerning disclosure. Supreme Court denied plaintiffs' motion, and this appeal ensued.
Supreme Court possesses broad discretion to determine what sanction, if any, to impose for the spoliation of evidence, and its determination will remain undisturbed absent a clear abuse of that discretion (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1295, 956 N.Y.S.2d 196 [2012], lv. denied 20 N.Y.3d 858, 2013 WL 452396 [2013] ; Merrill v. Elmira Hgts. Cent. School Dist., 77 A.D.3d 1165, 1166, 909 N.Y.S.2d 208 [2010] ). Mindful that striking a pleading is a drastic penalty to impose absent willful or contumacious conduct, “[c]ourts will look to the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as a matter of elementary fairness” (Miller v. Weyerhaeuser Co., 3 A.D.3d 627, 628, 771 N.Y.S.2d 200 [2004], lv. dismissed 3 N.Y.3d 701, 785 N.Y.S.2d 28, 818 N.E.2d 670 [2004], appeal dismissed 5 N.Y.3d 822, 804 N.Y.S.2d 32, 837 N.E.2d 732 [2005] [internal quotation marks and citations omitted]; see Merrill v. Elmira Hgts. Cent. School Dist., 77 A.D.3d at 1167, 909 N.Y.S.2d 208 ; Puccia v. Farley, 261 A.D.2d 83, 85, 699 N.Y.S.2d 576 [1999] ). “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” (Steuhl v. Home Therapy Equip., Inc., 23 A.D.3d 825, 826–827, 803 N.Y.S.2d 791 [2005] [internal quotation marks and citation omitted]; accord Dobson v. Gioia, 39 A.D.3d 995, 998, 834 N.Y.S.2d 356 [2007] ; see Lawrence Ins. Group v. KPMG Peat Marwick, 5 A.D.3d 918, 920, 773 N.Y.S.2d 164 [2004] ).
Here, the operations manager of Ellis Hospital's Health Information Services Department explained that both Bellevue and Ellis had consistent policies of retaining adult records for six years following discharge and infant records until the child turned 21, as they were required to do by law (see 10 NYCRR 405.10 [a][4] ). While acknowledging that a mother's labor and delivery records may contain important information relevant to the infant's health, this individual explained that labor and delivery records are part of the mother's records and are not separated from other adult medical records prior to their destruction. As Supreme Court found, there is no indication in the record that Bellevue or Ellis acted maliciously or in bad faith in discarding the records, which they did in the regular course of business in accordance with hospital policy and a reasonable reading of the regulatory requirements (see Dobson v. Gioia, 39 A.D.3d at 998, 834 N.Y.S.2d 356 ; Steuhl v. Home Therapy Equip., Inc., 23 A.D.3d at 826–827, 803 N.Y.S.2d 791 ; Hemingway v. New York City Health & Hosps. Corp., 13 A.D.3d 484, 484–485, 787 N.Y.S.2d 86 [2004] ).
Nor have plaintiffs established that the unavailability of the labor and delivery records “ ‘fatally compromised [their] ability’ to prosecute this action” (Gotto v. Eusebe–Carter, 69 A.D.3d 566, 568, 892 N.Y.S.2d 191 [2010], quoting Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718, 872 N.Y.S.2d 166 [2009] ). Plaintiffs have access to other pertinent records—including fetal heart rate monitoring strips and a biophysical profile report containing critical information regarding the child's risk factors during the labor and delivery—and have the opportunity to depose, among others, the mother's obstetrician, defendant Clifford Elson, and hospital personnel regarding the events that transpired (see Johnson v. Ayyub, 115 A.D.3d 1191, 1192–1193, 982 N.Y.S.2d 615 [2014] ; Madkins v. State of New York, 82 A.D.3d 1174, 1174, 919 N.Y.S.2d 375 [2011] ; Gotto v. Eusebe–Carter, 69 A.D.3d at 568, 892 N.Y.S.2d 191 ; compare Baglio v. St. John's Queens Hosp., 303 A.D.2d 341, 342–343, 755 N.Y.S.2d 427 [2003] ). Under all of the circumstances, we cannot say that Supreme Court abused its discretion in declining to strike Bellevue's answer due to the unavailability of the mother's labor and delivery records.
Supreme Court did not err in declining to consider arguments contained in the reply affidavits submitted by plaintiffs on the motion, as these submissions were an improper vehicle for raising new arguments (see CPLR 3211[e] ; Matter of Albany County Dept. of Social Servs. v. Rossi, 62 A.D.3d 1049, 1050, 880 N.Y.S.2d 199 [2009] ; Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562, 582 N.Y.S.2d 712 [1992] ).
Nor are we persuaded that Bellevue's failure to fully comply with prior disclosure orders warrants such a drastic penalty. Despite some initial inconsistent responses, Bellevue ultimately reported that the mother's labor and delivery records had been discarded in 2008 pursuant to hospital policy and that, although attempts had been made to locate a copy of Bellevue's record retention/destruction policy prior to its merger with Ellis, no such document had been found. Although, at the time of the motion, Bellevue had yet to provide a list of labor and delivery nurses who were on staff for the child's birth and offered no explanation as to why some, but not all, of the mother's hospital chart was in counsel's possession, Supreme Court chose to provide Bellevue one last opportunity to comply with the disclosure orders and warned that the failure to do so within 30 days would result in the imposition of sanctions. Supreme Court's resolution of the issue fell within its broad discretion, and we find no reason to disturb it (see Bedell v. Rocking Horse Ranch Corp., 94 A.D.3d 1389, 1391, 943 N.Y.S.2d 270 [2012] ; Kauffman v. Triborough Bridge & Tunnel Auth., 295 A.D.2d 171, 171–172, 743 N.Y.S.2d 109 [2002] ). ORDERED that the order is affirmed, with costs.
LAHTINEN, STEIN, GARRY and DeVINE, JJ., concur.