Spitz v Dvorkes

[*1] Spitz v Dvorkes 2006 NY Slip Op 50693(U) [11 Misc 3d 1084(A)] Decided on April 12, 2006 Supreme Court, Kings County Kurtz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 12, 2006
Supreme Court, Kings County

Toby Spitz, as mother and natural guardian of D. SPITZ, an infant, TOBY SPITZ, and JACOB SPITZ, individually and as the parents of infant D. SPITZ, and JACOB SPITZ, individually, Plaintiffs,

against

Sara Dvorkes, KATARZYNA PERLMAN, M.D., CHUNHUA LIU, M.D., ARIE SCHWARTZ, M.D. and MAIMONIDES MEDICAL CENTER, Defendants.



2570/05

Donald Scott Kurtz, J.

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiffs move for an Order striking the respective answers of the defendants herein based upon spoliation of evidence. In their reply papers, however, plaintiffs withdrew the motion with respect to defendant Dvorkes.

Plaintiffs commenced the instant medical malpractice action alleging , inter alia, that on August 28, 2002, defendants failed to properly monitor the fetal monitor being utilized prior to the birth of the infant plaintiff which would have alerted them that the infant was in fetal distress and being deprived of sufficient oxygen necessitating an immediate Caesarian section.

On December 7, 2004, a duly executed authorization was sent to defendant Maimonides Medical Center (hereinafter "Maimonides") requesting the complete hospital record of the infant and the infant's mother. Maimonides provided the mother's hospital records, absent the fetal monitor strips. Although the fetal monitor strips were specifically requested, none were provided. On January 4, 2005, plaintiffs sent a follow-up letter specifically asking for the fetal monitor strips. In response, Maimonides sent a letter, dated January 21, 2005, stating that the fetal monitor strips are "not available at this time" and that "an ongoing search for the Fetal Monit. Strips will continue." Additionally, Maimonides sent what is labeled as an affidavit from its director of OB/GYN, stating that she "searched for the Fetal Monitoring Log Book of August, 2002" and that "[t]he Log Book cannot be located at this time."

Plaintiffs commenced this action on January 27, 2005. On August 8, 2005, a Preliminary Conference Order was entered into specifically providing that Maimonides was to furnish certified copies of the infant's fetal monitor tapes by August 31, 2005. To date, said records have not been provided. Plaintiffs maintain that defendants' respective answers should be stricken on the ground of spoliation because the fetal monitor strips constitute "key evidence" without which plaintiffs will be unable to make out a prima facie case against the defendants.

Plaintiffs note that there are no contemporaneous hospital notes that would indicated the ongoing events of the mother's labor. The hospital records include a dictated admission note by the defendant midwife, Sara Dvorkes, and a dictated report by Dr. Arie Schwartz after the cesarean section. There are no hospital notes by any doctor or midwife between these two notes. Moreover, there are no nurse's notes describing the ongoing events of the labor. Plaintiffs argue that normally, a hospital obstetrical record will contain descriptions of the labor such as the fetal heart rate, its variability, and frequency of contraction. In the absence of such notations and the fetal monitor strips, plaintiffs contend that they have no way of knowing what took place during the eight hour labor because there is no contemporaneous source of information. [*2]

In further support of its position, plaintiffs submit the affirmation of a physician specializing in obstetrics and gynecology. He reviewed the mother's medical records from the time she was admitted to the time she was discharged. The physician states that although the records indicate the presence of an Internal Fetal Monitor, the fetal monitor records have not been produced to indicate "the onset, extent and duration of the fetal monitoring, nor the extent and length of time and degree of fetal distress experienced by the fetus prior to delivery." He states further that the only information is of "an indication for C/section:non-reassuring fetal heart rate (scalp ph 7.13) after persistent bradyc" (Quoting the mother's medical records) and that the fetal monitor strips are "critical to the core issue of the fetus' condition and are key evidence necessary to determine the appropriateness and timeliness of the medical actions taken by the physicians and attending staff to react to and treat the obvious distress of the infant in utero." The physician concludes that absent the fetal monitor strips, he is unable to provide an opinion to plaintiffs regarding their claim of medical malpractice.

In opposition to this motion, defendants attach the first hour and a half of fetal monitor strips that Maimonides recently located. Defendants' attorney maintains that the fetal monitor strips do not constitute key or critical evidence; that the infant's "Apgar" score was normal, which demonstrates the absence of asphyxia; that a blood test was done on the infant's "cord" core blood after her birth and the results were completely normal; that the blood test proves that there was no reduction in oxygen to the infant; that the Caesarian section was done before any damage to the infant could or did occur; and that there are other indications in the mother's records that the infant did not suffer from a lack of oxygen, such as the absence of acidemia. Defendants' attorney points to the fact that a Magnetic Resonance Imaging (hereinafter "MRI") test of the infant's brain was taken on November 11, 2003 and it was read as being normal; that a second MRI was taken in December of 2004 and it indicated a problem with the infant; and that, consequently, the problem surfaced between the time that the first MRI was taken and the time the second one was taken. He further concludes that if severe hypoxia and hypertensive insult were present, it would show up on an MRI within 24 hours after the alleged injury. All of these medical conclusions by defendants' attorney are of no probative value and are not supported by an affidavit from any of the defendants or other medical experts.

Defendants submit the affidavits of two physicians with specialties in child neurology. Each of these doctors conclude that the availability of the fetal monitor strips would not be relevant to the diagnosis or the care of the infant's current condition. However, most notably, neither of them give an opinion regarding the need for the fetal monitor strips in establishing whether or not the defendants acted reasonably prior to and during the delivery, the only issue raised by this motion.

When a party "negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading (citations omitted)." Baglio v St. John's Queens Hosp., 303 AD2d 341, 342 (2d Dept 2003). Even though the destruction of evidence may have [*3]occurred through negligence rather than wilfulness, a party's negligent loss of evidence can be just as fatal to another party's ability to present a case or defense and the striking of the pleading may be warranted.

See Didomenico v. C&S Aeromatick, 252 AD2d 41, 53 (2d Dept 1998).

Fetal monitoring strips "continually assess the fetal heart rate and the relationship of the fetal heart rate to maternal contractions." Baglio v St. John's Queens Hosp., 303 AD2d at 342. These fetal monitor strips are continually analyzed to determine whether there is fetal distress or stress upon the fetus caused by lack of oxygen to the fetus. See Id. The facts of this case are identical to those of Baglio, supra. In Baglio, the plaintiffs alleged that the infant suffered brain damage due to a deprivation of oxygen during delivery. The hospital was unable to locate the fetal monitor strips and the Appellate Division reversed the lower court's decision not to strike the defendants' answer based upon spoliation. The Appellate Division found that plaintiffs demonstrated that the fetal monitor strips are "the most critical evidence to determine fetal well-being at the time of treatment, and in evaluating the conduct of health care providers with regard to obstetrical management thereafter." Id at 342.

The Court concludes that plaintiffs herein have similarly demonstrated that the fetal monitor strips are the most critical evidence to determine fetal well-being at the time of treatment and in evaluating the conduct of the defendants; that the fetal monitor strips would give fairly conclusive evidence as to the presence or absence of fetal distress; and that their loss deprives the plaintiffs of the means of proving their medical malpractice claim against the defendants. However, plaintiffs have failed to establish that any of the individually named physicians had any responsibility for the storage or maintenance of the fetal monitor strips or had any responsibility for their disappearance.

Consequently, plaintiffs motion is granted to the extent that the answer of defendant Maimonides Medical Center is stricken unless within sixty days[FN1] of service of a copy of this Decision/Order with Notice of Entry it provides plaintiffs with the complete fetal monitor strips.

The foregoing shall constitute the Decision and Order of the Court.

Dated: April 12, 2006

DONALD SCOTT KURTZ

Justice, Supreme Court Footnotes

Footnote 1: Subsequent to the submission of this motion, defendants advised the Court by letter dated April 5, 2006 that a portion of the Electric Fetal Monitoring Report was found and that its search for the missing fetal monitor strips remains ongoing. Consequently, the Court is affording defendants an additional sixty days to find the missing fetal monitor strips.