Actions brought on behalf of children who sustain neurologic damage as a result of improper medical care around the time of birth represent one of the most important areas of medical malpractice litigation. The injuries in those cases are often severely debilitating and can have profound, lifelong impact on the children and their families. One of the most important items of evidence in many of these cases are the fetal monitor strips, which are essentially a continuous recording of what was happening with the maternal contractions and the fetal heart rate at the time. This evidence is critical where it is claimed that the fetus suffered a deprivation of oxygen during labor or delivery and needed to be delivered sooner. The fetal monitor strips (or tapes, as they are sometimes called) can be so crucial in these cases that over the past decade, a body of case law has developed over what should be done when they are missing. That decisional law is the subject of this month’s column.
Before turning to that law, it must be noted that since fetal monitor strips are part of the medical record, the New York State Hospital Code requires that they be retained by the hospital for a specified period of time. Pursuant to 10 NYCRR 405.10(a)(4):
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