In Gomez v. Cabatic, 2018 N.Y. Slip Op. 00278, the Second Department upheld an award of punitive damages against a physician who was alleged to have destroyed portions of a medical record.  The Gomez case involved a claim that a pediatric endocrinologist’s failure to diagnose and treat a 6 year old’s type I diabetes resulted in the child’s death.  During trial it became clear that the physician had made handwritten notes during the course of the child’s care.  After the child’s death, the defendant was contacted by the plaintiff’s counsel to obtain the child’s medical records.  It appears that in response, the defendant physician created typed notes from the handwritten notes and then destroyed the original handwritten notes.  The typewritten notes contained information that was favorable to the defense, and the plaintiff argued that the typewritten record was created by the defendant physician to present a more favorable defense.  In light of this, the Court allowed the jury to consider imposing punitive damages for the physician’s actions related to destroying the records.

The jury found that the defendant committed medical malpractice and awarded $500,000.00 in damages.  The jury also awarded $7,500,000.00 in punitive damages against the physician.  On appeal, the Second Department upheld the decision to allow the jury to consider and award punitive damages.  In doing so it held that “where … 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.”  The Second Department rejected the argument that punitive damages could not be awarded because the destruction of records did not cause the child’s death.  It also rejected an argument that adequate safeguards against this behavior already existed through spoliation sanctions or professional sanctions through OPMC.  The Second Department did, however, find that the award for punitive damages was excessive.  It ordered a new trial on damages unless the plaintiff agreed to a reduction in the award of punitive damages from $7,500,000.00 to $500,000.00.

Punitive damages are very rarely awarded in medical malpractice cases.  While the physician’s behavior in this action was certainly unusual, this case highlights the need to adequately maintain and preserve records.  We can expect that this case will result in increased attempts to have juries consider punitive damages whenever a claim can be made that records were inappropriately lost or altered.