Wisman v Staten Is. Univ. Hosp.

[*1] Wisman v Staten Is. Univ. Hosp. 2006 NY Slip Op 51601(U) [12 Misc 3d 1197(A)] Decided on August 4, 2006 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2006
Supreme Court, Richmond County

JACK WISMAN, an infant by his parents and natural guardians, LORRAINE MILLAN and IAN WISMAN, and LORRAINE WISMAN, individually, Plaintiffs,

against

STATEN ISLAND UNIVERSITY HOSPITAL, FRANCIS MARTINGANO, M.D., KATHLEEN PERRY, M.D., JOSE REMENTERIA, M.D., KEVIN NOROWITZ, M.D., PRADEEP KUMAR KANDULA, M.D., RICHARD CREVECOEUR, M.D. and LEE WALDMAN, M.D., Defendants.



14300/96



Attorney for plaintiffs:

DINKES & SCHWITZER

ATT: LEIGH W. BERNSTEIN, ESQ.

112 MADISON AVENUE

NY, NY 10016

212-685-7800

Attorney for Defendants:

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER

ATT: TIMOTHY J. SHEEHAN, ESQ.

150 EAST 42 STREET

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion (No. 3606) of defendant Francis Martingano, M.D., inter alia, for leave to amend his answer and to strike the answer of codefendant Staten Island University Hospital is denied, as is plaintiffs' motion (No. 3646), inter alia, for sanctions pursuant to CPLR 3126.

This medical malpractice action arises out of the prenatal care which plaintiff Lorraine Millan received from defendant Francis Martingano, M.D., as well as the treatment that she and her infant, plaintiff Jack Wisman ("Twin A"), received at Staten Island University Hospital ("S.I.U.H.") during her labor and delivery on July 5 to July 6, 1994 [FN1]. Plaintiffs claim that Dr. Martingano, who performed a cesarean section during the delivery of Ms. Millan's twins, negligently and intentionally (1) ruptured Twin A's membrane during an office visit on July 5, 1994, resulting in Twin A's exposure to Group B Streptococcus ("Group B Strep"), (2) failed to culture Ms. Millan for Group B Strep during her prenatal treatment as per her request, (3) exposed Twin A to Group B Strep for an unsafe period of time by allowing Ms. Millan to labor too long with a ruptured membrane despite, inter alia, her lack of progress and the cessation of labor, (4) delayed performance of the cesarean section, (5) failed to timely diagnose and treat Twin A's Group B Strep infection, and (6) failed to appreciate the extent of the infant's oxygen deprivation and fetal distress. It is claimed that the foregoing deviations from accepted medical and obstetrical practice in the management of Ms. Millans' labor and delivery resulted in brain damage to the infant plaintiff. [*2]

In moving for leave to amend his answer, defendant Dr. Martingano maintains that he should be granted permission to add a cross claim for indemnification against S.I.U.H. due to its spoliation of certain alleged critical evidence in the case, i.e., Twin A's fetal heart monitoring strips. The doctor maintains that these monitoring strips "irrefutably offer the most reliable and conclusive evidence of the presence or absence of fetal distress during labor" and are "a factor [to be] considered when diagnosing/managing Streptococcus and other infections that are potentially harmful to the fetus." According to Dr. Martingano, the loss of this exculpatory evidence has irreparably prejudiced his defense to plaintiffs' claims of undiagnosed fetal distress, as well as the alleged failure to timely diagnose and treat Twin A's Group B Strep infection.

In the event that leave is granted, Dr. Martingano also moves to strike the codefendant's answer and for summary judgment on his cross claim for indemnification in view of the hospital's alleged spoliation of evidence claimed to be "the best way to disprove plaintiffs' theory of fetal distress." In support, the doctor maintains that since fetal heart rate is a "major" factor in evaluating an infant for infection during labor, the hospital's failure to preserve Twin A's fetal heart monitoring strips has resulted in the loss of compelling evidence. In addition, the doctor maintains that (1) Ms. Millan's hospital chart is devoid of any indication of fetal distress at anytime during her labor, (2) the infant's excellent Apgar scores of 9/9 belie any claim of permanent brain damage due to birth trauma and (3) the absence of any signs of fetal distress during labor rendered internal monitoring of the fetus unnecessary.

Plaintiffs' motion to strike the hospital's answer and for a default judgment against this defendant is similarly based upon the alleged spoliation of Twin A's heart monitoring strips, which plaintiffs maintain are necessary to substantiate their claim that fetal distress due to the lack of oxygen was the proximate cause of the infant's brain damage. In seeking this sanction for the loss of "key" evidence, plaintiffs rely on Baglio v St. John's Queens Hosp. (303 AD2d 341 [2nd Dept 2003]), in which the Appellate Division held that the hospital's negligent loss of fetal monitoring strips warranted striking the answer where the "strips" in question represented "fairly conclusive evidence as to the presence or absence of fetal distress, and their loss deprive[d] the plaintiff of the means of proving her medical malpractice claim against the hospital" (id. at 343).

In opposition to both motions, defendant S.I.U.H. submits the affirmation of an expert in obstetrics and gynecology, James T. Howard, M.D., who opines that the information provided by the fetal heart monitoring strips would be of no assistance in resolving plaintiffs' claims against Dr. Martingano or in establishing causation. According to the doctor, this is so because "[a]n exposure to Group B Strep in utero can result in an infection after birth without any evidence of fetal distress during labor and delivery (emphasis supplied)." In addition, the doctor states that the multiple entries in the labor and delivery records describing the fetal heart rate and its quality confirm the absence of fetal distress. Dr. Howard also maintains that "in view of Twin A's excellent condition at birth, there was no reason for S.I.U.H. to [*3]suspect [that] Twin A sustained an hypoxic injury or brain damage during labor and delivery, or...conclude that an earlier C-section was indicated." Pertinently, this expert notes that since the infant (1) had excellent Apgars and (2) did not present with the neurological depression that is typical of an infant experiencing significant fetal distress, even if the missing strips evidenced some degree of fetal distress, it would not have been enough to necessitate an earlier C-section.

S.I.U.H. also submits the affirmation of a pediatrician/neonatologist, Marjorie Schulman, M.D., who opines that the infant plaintiff did not sustain brain damage during his labor and delivery or any time thereafter based upon her review of (1) Twin A's medical and school records, (2) his prenatal records and the hospital's labor and delivery records, and (3) the report of Twin A's independent neurological examination by Dr. Ram Kairam on March 16, 2005 [FN2]. According to Dr. Schulman, although Twin A has been diagnosed with bipolar disorder, social anxiety disorder, selective mutism and autism, he has never been diagnosed with brain damage, and an MRI of his brain conducted on May 11, 2002 was read as "normal." Thus, the doctor finds no medical evidence in Twin A's records to support a diagnosis of hypoxic ischemic encephalopathy during the neonatal course of treatment, and opines that his excellent Apgars (9/9) and lack of significant neurological depression at the time of delivery effectively rule out the presence of fetal distress sufficient to cause brain damage. In any event, Dr. Schulman concludes that any alleged fetal distress would not have been severe enough to result in brain damage, and that it is not unusual for the manifestations of symptoms in an infant exposed to Group B Strep in utero to be delayed for several hours after birth.

Lastly, the hospital has submitted the affidavit of its Operations Manager of Medical Records, Doreen Battista, who attests that the first notification which the Department of Medical Records received regarding the retrieval and production of all of the records of the birth of Twin A was after the hospital's receipt of the summons and complaint in this action on January 13, 1997, approximately two and a half years after the birth. In response to that notification, Medical Records reviewed the department's log book and learned for the first time that the customary entry reflecting the receipt of Twin A's fetal heart monitoring strips was absent. Ms. Battista concludes by stating that a "thorough and exhaustive search of numerous boxes retrieved from the off site storage facility was made [and] Jack Wisman's strips were not found." In view of this affidavit, S.I.U.H. claims that the common-law doctrine of spoliation is inapplicable here, and the striking of its answer is unwarranted since (1) the hospital had not been put on notice that the evidence might be needed for future litigation, and (2) the loss was not willful.

In further opposition to Dr. Martingano's motion, S.I.U.H. contends that (1) the doctor has failed to identify either a contractual or common-law right of indemnification, (2) his motion for summary judgment on the proposed cross claim [*4]in untimely under CPLR 3212(a), (3) the delay in moving is unexplained (see Brill v City of New York, 2 NY3d 648, 652), and (4) he has presented no expert medical evidence to establish that the fetal heart monitoring strips are crucial to his defense.

In further opposition to plaintiffs' motion, S.I.U.H. maintains that (1) by failing to compel the production of the fetal heart monitoring strips and/or move for sanctions prior to the filing of the note of issue, plaintiffs have waived their right to do so, (2) neither the striking of its answer nor an order of preclusion is warranted since there was no court order directing the production of the fetal heart monitoring strips and its failure to disclose was not willful and (3) the motion is legally insufficient since it is not supported by the affidavit of a medical expert establishing that the fetal heart monitoring strips are necessary to the prosecution of plaintiffs' claims.

In an attempt to remedy the deficiency in his moving papers, Dr. Martingano has submitted, over the objection of S.I.U.H., a Supplemental Reply Affirmation containing the affidavit of a purported medical expert [FN3] to provide supplemental evidence of the significance of the fetal heart monitoring strips to Dr. Martingano's defense.

Also over the objection of S.I.U.H., plaintiffs have sought leave to submit a Reply Affirmation containing a physician's affirmation to the effect that the failure to produce the fetal heart monitoring strips will deprive plaintiffs of the ability to prove their claims.

With regard to this dispute over the reply papers, the issue of the loss of the fetal heart monitoring strips has been rendered academic by the absence of any showing that S.I.U.H. either negligently or intentionally lost or destroyed the evidence in question after being placed on notice that it might be needed for future litigation (see Goll v Amer. Broadcasting Cos., 10 AD3d 672, 673 [2nd Dept 2004]; Iannucci v Rose, 8 AD3d 437, 438 [2nd Dept 2004]; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [2nd Dept]). Thus, even assuming that the strips represented "key evidence", neither movant has established a factual basis for sanctions against S.I.U.H. (see Barahona v Trustees of Columbia Univ. in City of New York, 16 AD3d 445 [2nd Dept 2005]; cf. Bear, Stearns & Co. v Enviropower, LLC, 21 AD3d 855 [1st Dept 2005], app dismissed 6 NY3d 750; Baglio v St. John's Queens Hosp. 303 AD2d at 342).

Moreover, since both plaintiffs and defendants have been equally affected by the loss, neither party can be said to have reaped an unfair advantage in this litigation (see De Los Santos v Polanco, 21 AD3d 397, 398 [2nd Dept 2005]).

Finally, movants' failure to move to compel the production of the fetal heart monitoring strips at any time prior to the filing of the note of issue constitutes a waiver of their right to move for sanctions at this late stage of the case (see Simpson v City of New York, 10 AD3d 601 [2nd Dept 2004]; accord Escourse v City of [*5]New York, 27 AD3d 319 [1st Dept 2006]). This result is not affected by the substitution of counsel for Dr. Martingano which occurred subsequent to the filing of the note of issue.

Accordingly, it is

ORDERED, that the motions are denied in their entirety.

E N T E R,

Dated: __________________________

J.S.C.

Footnotes

Footnote 1: This action has been discontinued as against all defendants except Dr. Martingano and S.I.U.H.

Footnote 2: In his report, Dr. Kairam's concludes that it is unlikely that Twin A's neurological syndrome was caused by a significant injury to a previously normal brain.

Footnote 3: The name and signature of Dr. Martingano's expert is intentionally redacted from the affidavit and will be provided to the Court upon request.