Attorneys investigating potential medical malpractice actions are occasionally faced with what appears to be medical records that are missing or have been altered. Although this is by no means the norm, its occurrence is not as infrequent as one might expect. And when it happens, it is often because someone recognized a record that could support a claim of malpractice. There are certainly instances in which such actions result in lawsuits not being brought because the malpractice was effectively concealed. Other times, the evidence from other records or conduct, or from the words of the patient or family members, establishes a claim and exposes the fraud. However, tampering of this nature is never appropriate and must be deterred.

Under Education Law §6530[32], the failure to “maintain a record for each patient which accurately reflects the evaluation and treatment of the patient” constitutes professional misconduct which may give rise to the imposition of an administrative penalty. See, e.g., St. Hill v. New York State Board for Professional Medical Conduct, 166 A.D.3d 1092 (3d Dep’t 2018). However, the limited risk of being caught and subjected to an administrative inquiry does not provide a deterrence commensurate with the potentially severe harm in thwarting a claim of malpractice.

Sanctions for spoliation of evidence are likewise of only limited value in deterring such conduct. A defendant’s answer will only be stricken for spoliation where the missing evidence deprives the moving party of the ability to establish his or her case. See Hughes v. Covey, 131 A.D.3d 581 (2d Dep’t 2015); Coleman v. Putnam Hosp. Center, 74 A.D.3d 1009 (2d Dep’t 2010). Since the deprivation of the ability to prove one’s case will typically prevent the case from ever being brought, that sanction is not commonly imposed, and the lesser sanction of an adverse inference charge poses no meaningful deterrence at all.

Without question, the most effective deterrence to the destruction or alteration of medical records in an effort to evade liability for medical malpractice liability is the potential for a punitive damages award to be imposed against the offending party, and in Gomez v. Cabatic, 159 A.D.3d 62 (2d Dep’t 2018), the Second Department upheld such an award for that precise misconduct.

That case stemmed from the death of a young child who developed diabetic ketoacidosis after her Type 1 diabetes went undiagnosed and untreated. At age five, the child had high blood sugar, for which her pediatrician referred her to a pediatric endocrinologist, Dr. Mercado. She was seen by Dr Mercado on Oct. 31, 2009, Nov. 14, 2009, and Dec. 12, 2009. The opinion indicates that Dr. Mercado assumed that the child had Type 2 diabetes and never considered that it might be Type 1. On Jan. 22, 2010, the child became sick and was admitted to the hospital, where she remained until she died two days later. An autopsy indicated the cause of death as a brain herniation from cerebral edema following diabetic ketoacidosis.

Dr. Mercado’s records were important evidence in the malpractice action that was subsequently brought, and there were questions regarding their veracity. There were typewritten reports for all three visits, but had handwritten notes for only the first visit, Oct. 31, 2009. On Feb. 26, 2010, Dr. Mercado wrote a letter to the pediatrician, thanking her for the referral and attaching “consult/follow-up visit notes.” At trial, she testified that she was unaware that the child had been dead for more than one month when she wrote the letter. Asked why she sent the letter at that time, she indicated that there had also been a letter requesting her records. She testified that the plaintiff’s attorney’s firm sent a letter asking for her medical records, and that in response she sent a copy of her chart to the pediatrician and two weeks later sent a copy to the law firm.

At her deposition, Dr. Mercado testified that she prepared and signed the typewritten report for the Oct. 31, 2009 visit the same day it occurred. At trial, however, she testified that she typed the report later. She indicated that she has paper on which she “scribbled” when she sees the patient, and types them up later. When asked by plaintiff’s counsel how much later, she responded when he asked for the record. She indicated that she typed all three reports after receiving the letter requesting her records and that she saved the handwritten notes from the first visit, but destroyed the handwritten notes from the two subsequent visits. She said she saved the notes from the first visit because it was the official registration form.

Dr. Mercado’s typewritten record for the third and final visit on Dec. 12, 2009, identified testing that would be performed at the next visit in four weeks. However, the child’s mother was given an appointment card indicating that the next appointment was scheduled for Feb. 13, 2010, two months later. While Dr. Mercado testified at her deposition that her nephews scheduled patient appointments and she was not involved in selecting the February 2010 date, the child’s mother testified at trial that Dr. Mercado told the person scheduling the appointments to have her back in two months. At trial, Dr. Mercado gave no explanation for the discrepancy between her typewritten report and the appointment card with respect to the follow-up date.

The jury found that Dr. Mercado departed from accepted medical practice, which departure was a substantial factor cause of the child’s injury and death. It awarded $400,000 for her conscious pain and suffering and $100,000 for her wrongful death. The jury also found that the plaintiff was entitled to punitive damages against Dr. Mercado based upon her destruction of her handwritten notes, and after a separate trial on the amount, made a punitive damages award of $7,500,000. That amount was conditionally reduced by the trial court to $1,200,000. On appeal, the Second Department upheld the jury’s finding of punitive damages against Dr. Mercado, but further conditionally reduced the amount to $500,000.

The first question addressed by the Appellate Division was whether the defendant’s destruction of her original records can support an award of punitive damages. Dr. Mercado argued that punitive damages should not lie because her destruction of the records did not contribute to the child’s death or prevent the successful prosecution of the malpractice action. After noting that punitive damages are intended to punish the offending party for wrongful conduct, deter others from engaging in similar conduct, and express public condemnation of such conduct, the court analyzed the issue against the backdrop of the trial court’s instructions to the jury that it could award punitive damages if it found by clear and convincing evidence that Dr. Mercado maliciously destroyed her handwritten notes after receiving a letter from the plaintiff’s attorney and that an act is malicious if it is done deliberately, with knowledge of the plaintiff’s rights and with an intent to interfere with those rights. Therefore, the Appellate Division framed the issue as “whether a plaintiff may recover punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability.”

While noting that two unpublished trial level decisions—one from Supreme Court, New York County and the other from the Southern District—found that altering medical records did not support a claim for punitive damages (see Devadas v. Niksarli, 2009 WL 1136792 (Sup. Ct., N.Y. Co. 2009); Whittlesey v. Espy, 1996 WL 689402 (S.D.N.Y. 1996)), the court cited the contrary conclusion reached by the Supreme Court of Ohio in Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994). The Second Department observed that the Ohio court “emphasized that the act of altering or destroying records to avoid liability ‘is particularly deserving of punishment in the form of punitive damages and … a civilized society governed by rules of law can require no less.’”

The Second Department also cited two New York Appellate Division cases as suggesting that punitive damages may lie in this circumstance. In Abraham v. Kosinski, 251 A.D.2d 967 (4th Dep’t 1998), after finding that the allegations of fraud and gross negligence were sufficient to state a cause of action because the alleged damages included that the plaintiff pursued ineffective treatment and did not pursue appropriate treatment, the Fourth Department also noted that allegations that the defendant intentionally withheld medical records and information from plaintiff to avoid the malpractice claim were sufficient to support the claim for punitive damages. However, the Gomez court acknowledged, the Fourth Department subsequently affirmed summary judgment dismissing those causes of action because the record established that the plaintiff’s treatment was unaffected by the alleged fraud, and further that absent a separate cause of action for fraud or gross negligence, the claim for punitive damages was also properly dismissed. See Abraham v. Kosinski, 305 A.D.2d 1091 (4th Dep’t 2003).

The other Appellate Division case cited by the Second Department in Gomez is the Third Department’s decision in Marsh v. Arnot Ogden Med. Ctr., 91 A.D.3d 1070 (3d Dep’t 2012), where plaintiff’s decedent was mistakenly given medication that had not been prescribed for him and his chart was not updated to reflect that mistaken administration until four months after his death. Citing the first decision in Abraham v. Kosinski, the Third Department found that a willful failure to disclose pertinent medical information may support punitive damages when done to evade a malpractice claim, and concluded that dismissal of punitive damages was premature because there had not been an adequate opportunity for discovery on the issue.

After considering the above described precedents, and the Second Department in Gomez held:

… where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.

The court rejected the contention that punitive damages cannot be recovered because the destruction of the records was not a contributing cause of the patient’s death. It commented that “a demand for punitive damages possesses no viability absent its attachment to a substantive cause of action,” and noted that the jury in this case found malpractice. That finding, and the award of compensatory damages “served as a foundation for the award of punitive damages for Mercado’s attempt to evade liability for that malpractice by destroying original records of her treatment of the child.”

The court similarly rejected the contention that punitive damages cannot be recovered because where the destruction of the records did not prevent a successful prosecution of the action. If punitive damages were precluded based on the success of the malpractice claim, “medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort.”

It also rejected the assertions of the Medical Society of the State of New York, which filed amicus curiae, that the threat of administrative discipline and spoliation sanctions provide a sufficient deterrent, noting that Dr. Mercado was not deterred by the possibility of disciplinary action.

The court further found that there was legally sufficient evidence to support the jury’s verdict on punitive damages, and that that finding was not against the weight of the credible evidence.

In so finding the court noted that it was undisputed that Dr. Mercado destroyed the handwritten records of two of the three visits, that she contradicted her deposition testimony that the typewritten record of the first visit was made the day of the visit, and that the typewritten record of the first visit contained information not reflected in the handwritten note of that visit. The court further cited the discrepancy between the appointment card and Dr. Mercado’s note of the third visit regarding when the child was to return, the latter of which would have had the child returning before she became sick. All of this, the court found, provided a rational basis for the jury’s finding on punitive damages, and a fair interpretation of the evidence for that finding.

The court nevertheless found the award, even as reduced by the trial court, to be excessive. Citing the guidelines promulgated by the United States Supreme Court in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003) in its due process analysis of the amount of punitive damages, and emphasizing the high Court’s cautionary instruction that few awards exceeding a single-digit ratio between punitive and compensatory damages will pass muster, the Second Department found that punitive damages of $500,000 was appropriate—that was the same amount as the total award for compensatory damages.

The decision in Gomez represents sound legal policy. It seems likely that over the decades, a good number of meritorious malpractice actions either have not been brought or have had their outcomes deleteriously affected by the destruction or alteration of important medical records. It is not always easy to uncover such fraudulent acts, and that is the result upon which someone is banking when engaging in that misconduct. Therefore, when such a fraud is exposed, the penalties need to exceed that to which the wrongdoer would be subject merely by virtue of a plaintiff’s verdict for compensatory damages. Otherwise, there is nothing to lose by employing surreptitious means in an effort to prevent an action from being brought or from succeeding.

Such deterrence cannot be accomplished by imposing sanctions for spoliation. Even the most severe sanction, striking the offending defendant’s answer, only results in liability for which the wrongdoer may be indemnified by insurance. That is not the case with punitive damages, which a defendant must pay from his or her own pocket.

Nor is the risk of a disciplinary proceeding sufficient. That may well serve as a deterrent to some persons who contemplate engaging in such conduct—and presumably the vast majority of medical professionals would not even consider it. However, those who have the temerity to alter or destroy records despite the risk of professional discipline are the ones who demonstrate the need for punitive damages being imposed in this circumstance, and they deserve to have to pay them.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.