The following papers numbered 1 to 4 read on this motion. PAPERS NUMBERED NOTICE OF MOTION AND CROSS MOTION1 2 ANSWERING AFFIDAVIT AND EXHIBITS3 REPLY AFFIDAVIT AND EXHIBITS4 UPON THE FOREGOING CITED PAPERS, THIS MOTION AND CROSS-MOTION ARE GRANTED AS FOLLOWS: The instant medical malpractice complaint alleges that plaintiff-infant (infant) suffered severe and permanent hypoxic brain injury during a XXXXX-labor and delivery at Wyckoff Heights Medical Center (Wyckoff Heights).1 During discovery the parties learned that Wyckoff Heights was unable to locate some two hours (approximately 2 p.m. up until delivery at approximately 4 p.m.) worth of fetal heart rate monitoring strips. Given the aforementioned, plaintiffs move to strike Wyckoff Heights answer (CPLR 3126) or alternatively for a finding of spoliation, and defendants, Jorge Venegas, M.D., and Shirley Webbe, D.O., join plaintiffs via a cross-motion for a finding of spoliation. The expert (physician) opinions submitted in support of these motions agree that the missing monitoring strips would have provided material evidence to assess the fetal well-being of the infant during the two hours immediately preceding the c-section delivery. They agree that Wyckoff Heights had a duty to maintain the monitoring strips (10 NYCRR 405.10), and that the monitoring strips would have been fairly conclusive as to the presence or absence of fetal distress and the need, or lack thereof, for early intervention. Other medical records (i.e., nursing notes) from Wyckoff Heights indicate that a STAT c-section was ordered and performed due to a category II fetal heart tracing with a prolonged fetal heart rate deceleration of eight minutes without recovery. They allege that the time of this deceleration is not specified in these other records, and they believe that the missing monitor strips would resolve this issue. According to plaintiffs’ expert, Dr. Charles E. Stoopack, who is board certified in obstetrics and gynecology, the findings on the existing medical records are consistent with a diagnosis of severe hypoxic-ischemic encephalopathy (HIE), which is a known cause of brain injury in neonates. He goes on to state that HIE can be the result of a failure to expeditiously deliver a fetus demonstrating compromise (as evidenced on a fetal heart rate tracing) during labor and delivery. He concludes that without the monitoring strips, “there is no way to determine if the HIE suffered by the infant was due to a failure to properly treat fetal distress.” Dr. Howard Nathanson, who is also board certified in obstetrics and gynecology, is the expert proffered by Dr. Venegas and Dr. Webbe. Although Dr. Nathanson agrees on the need for the missing monitoring strips, his basis for them is different from that of Dr. Stoopack. According to Dr. Nathanson, the missing monitor strips deprive Dr. Venegas and Dr. Webbe “from providing uncontradicted evidence that the [c-section] was timely in light of fetal well-being between 2:10 pm and the [c-section].” In opposition, Wyckoff Heights provides an expert affirmation from Dr. Gary Mucciolo, who is also board certified in obstetrics and gynecology. According to Dr. Mucciolo, the missing monitor strips do not affect the ability to defend or prosecute this action. He states that the nursing notes “clearly document the decelerations that occurred both before the patient’s arrival to labor and delivery and thereafter. Regardless of what occurred here in terms of the fetal heart tracings that have not been recovered, and the plaintiff’s allegations regarding the timing of the delivery, this was a very sick fetus that was already severely compromised by the time [the mother] arrived at Wyckoff.” He goes on to state that it is apparent from the neonatal records that this infant sustained sepsis, was born with a congenital heart condition, and was not injured by the alleged delay in performing a c-section. Wyckoff also argues that the missing monitor strips are not relevant because plaintiffs’ bill of particulars (BP) only allege that the c-section should have been performed on or before 2:00 p.m. on XXXXX. However, plaintiffs’ motion papers make it clear that given the evidence recently disclosed during the discovery phase of this action, they intend to amend their BP to conform with same. For now, this procedural shortcoming as to the BP does not truly alter the relevance of the monitoring strips. According to Wyckoff Heights, despite a thorough and exhaustive investigation, they are unable to find the monitor strips in question. They state that after delivery, the monitoring strips are temporarily placed in an unlocked drawer in the Labor and Delivery Department, and collected the next day to be placed in storage by the Medical Records Department. Wyckoff Heights notes that at any time before being placed in storage, any nurse or physician in the Labor and Delivery Department has access to the monitoring strips. Given the aforementioned, Wyckoff Heights argues that as they did not have exclusive control of monitoring strips before they were placed in storage, then it is possible that any one of the “privately insured, separately employed physicians” could have lost the monitoring strips. There is no dispute that Wyckoff Heights does not know what became of the monitoring strips, and the aforementioned possibility is merely one out of many. Moreover, this speculative argument does not obviate the fact that these monitoring strips are medical records which Wyckoff Heights had a duty to maintain (10 NYCRR 405.10). At this point of the discovery process, there is no evidence to suggest that Wyckoff Heights failure to produce the monitor strips rises to the level of willful and contumacious conduct to warrant striking its answer. (CPLR 3126; Tawedros v. St. Vincent’s, 281 AD2d 184 [1st Dept 2001].) On the other hand, in addition to the remedies available under CPLR 3126, a penalty may be imposed for the loss of evidence pursuant to the common law doctrine of spoliation. (Ortega v. New York, 9 NY3d 69 [2007].) A spoliation finding requires that (1) the party having control of the evidence possessed an obligation to preserve it, (2) the evidence was wilfully or negligently (emphasis added) destroyed and (3) the evidence was relevant to a party’s claim. (Pegasus v. Varig, 26 NY3d 543 [2015]; Malouf v. Equinox, 113 AD3d 422 [1st Dept 2014].) As previously mentioned, there is no evidence to suggest that the monitor strips were intentionally or wilfully destroyed, and as such, the relevance of the monitor strips cannot be presumed. (Pegasus, 26 NY3d 543; Saeed v. City of NY, 156 AD3d 735 [2nd Dept 2017].) The evidence merely demonstrates that Wyckoff Heights was negligent in its duty to maintain the monitor strips (10 NYCRR 405.10), which still leaves the burden upon the movants (i.e., plaintiffs and co-defendants) to establish that these monitoring strips are in fact relevant to their claims or defenses. The experts proffered by plaintiffs and co-defendants, Dr. Venegas and Dr. Webbe, sufficiently describe the relevance of the monitoring strips to their claims and defenses. However, they differ in that plaintiffs’ expert argues that without the missing monitoring strips, there is no way to determine if the HIE suffered by the infant was due to a failure to properly treat fetal distress. Co-defendants’ experts argue that without the missing monitor strips, they are unable to provide uncontradicted evidence that the c-section was timely. In direct contrast to these experts, Wyckoff Heights’ expert states that the missing monitor strips do not affect the ability to defend or prosecute this action. He points to the nursing notes as sufficient evidence to document the decelerations that occurred, and opines that regardless of the monitoring strips, it is apparent from the neonatal records that this infant sustained sepsis, was born with a congenital heart condition, and was not injured by the alleged delay in performing a c-section. Overall, the parties have come forward with experts who disagree on material issues of fact as to whether the monitoring strips in question are relevant (and if they are relevant, then why) to the ultimate issues in dispute. (AJ Holdings v. IP Holdings, 129 AD3d 504 [1st Dept 2015]; Pennachio v. Costco, 119 AD3d 662 [2nd Dept 2014].) Given these conflicting expert opinions, this Court is satisfied that the relevancy of the monitoring strips is an issue that must be resolved by the trier of fact. (Ruggiero v. Ruggiero, 143 AD3d 964 [2nd Dept 2016].) Therefore, the instant motion and cross-motion are granted only to the extent that this Court finds that Wyckoff Heights had control of and an obligation to preserve the monitoring strips, which they negligently lost. (Pegasus, 26 NY3d 543 [2015]; Malouf, 113 AD3d 422.) The trier of fact will be instructed that Wyckoff Heights failed to preserve these monitoring strips, and the trier of fact will be charged (PJI 1:77.3) with resolving whether these monitoring strips are relevant to the ultimate issues in dispute. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: February 15, 2022
