Tumanee v Merchant

[*1] Tumanee v Merchant 2004 NY Slip Op 51147(U) Decided on August 19, 2004 Supreme Court, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2004
Supreme Court, New York County

Surang Tumanee

against

Iqbal S. Merchant, M.D. et al.



108246/02

Sheila Abdus-Salaam, J.

ordered that this motion by plaintiff to strike the answer of defendant N.Y. Hotel Trades Council and Hotel Association of New York City Health Center, Inc., sued here as Health Center Family Medical Office, The Hotel Association a/k/a The N.Y. Hotel Trades Council and The Hotel Association of N.Y.C., Inc. Health Centers ("Health [*2]Center") for purported negligent spoliation of evidence, is denied.

This is a medical malpractice action arising out of defendant Dr. Merchant's alleged improper prescription of the drug Tegretol to treat plaintiff's condition known as trigeminal neuralgia, an inflammation of the nerves in the face and head that causes headaches and facial pain. Dr. Merchant, one of the doctors who saw plaintiff at defendant Health Center over a period of several years, prescribed the Tegretol on October 26, 2001. A few days later, on November 3, 2001, plaintiff was hospitalized and diagnosed with Stevens-Johnson Syndrome, a condition caused by an allergic reaction to Tegretol. Plaintiff claims that Dr. Merchant should not have prescribed Tegretol because her medical chart noted that she had suffered Stevens-Johnson Syndrome as a child in reaction to unspecified pain medication, a reaction that Dr. Merchant had discussed with her before he prescribed the drug.

Although the notation concerning plaintiff's previous bout with Stevens-Johnson Syndrome was contained in her chart, apparently no note was made of it on the cover of the chart, under the heading Medical Alert. This failure to note plaintiff's adverse reaction to unspecified pain medication on the cover of her medical chart, according to defendant Health Center,[FN1] forms the basis of plaintiff's allegations of malpractice against the Health Center. Also, according to the Health Center, on February 5, 2002, two months before plaintiff filed this action, the Health Center replaced the cover of plaintiff's medical chart as part of an upgrading of its filing system.

In moving to strike the Health Center's answer, plaintiff alleges that she discovered that the cover of the medical chart had been replaced during the deposition in February 2004 of Herve Appollon, the Heath Center's Information Manager. Mr. Appollon testified that the old cover was "discarded" once the information was "transferred" to the new cover. Plaintiff argues that this destruction of the old cover constitutes negligent spoliation of evidence which prevents plaintiff from proving her case in that the "[old] cover page could have proved that the defendant physicians were on explicit notice of plaintiff's allergy to Tegretol when they prescribed the medication to treat plaintiff's neuralgia. (Or -alternatively - it could have proved that the defendants were not on notice of the plaintiff's specific allergy to Tegretol, but only on general notice that she reacted to some unspecified 'pain medications'. ***)" (Attorney's Affirmation, ¶13; underlining in original).[FN2] [*3]

On this record, I conclude that no sanction, much less the striking of defendant Health Center's answer, is warranted. First, plaintiff has not shown that the Health Center either negligently or intentionally destroyed a "key piece of evidence" that precludes plaintiff from prosecuting her claim or even severely prejudices her in doing so (Kirkland v. New York City Housing Authority, 236 AD2d 170, 173, quoting Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Conditioning Corp., 221 AD2d 243; Squitieri v. City of New York, 248 AD2d 201). Mr. Appollon testified at his deposition that the old cover was discarded after all the information it contained was transferred to the new cover. He also has submitted an affidavit in opposition to this motion in which he states his inspection of the new cover indicates that the Health Center employee who actually copied the information followed instructions and copied all the old information onto the new cover.[FN3] Thus, plaintiff has not demonstrated that the missing medical chart cover is crucial evidence which will prevent her from prosecuting her case, especially since plaintiff possesses the medical history section of the chart which does note her previous bout with Stevens-Johnson Syndrome as a result of an unspecified pain medication.

Second, the replacement of plaintiff's medical chart cover was done months before plaintiff brought this lawsuit. Despite plaintiff's insinuation that the timing of the replacement of the cover (just three weeks after her last visit to the Health Center) suggests that the Health Center was anticipating a lawsuit from her, plaintiff does not allege that she put the Health Center on notice that the medical chart cover would be needed for future litigation (see DiDomenico v. C& S Aeromatik Supplies, 252 AD2d 41).

Finally, plaintiff merely speculates that the old cover contained a notation regarding Stevens-Johnson Syndrome and/or the name of the medication that caused this reaction in plaintiff. Plaintiff has not submitted an affidavit stating that she told Dr. Merchant or Dr. Quillop, the doctor who made the notation in her chart about Stevens-Johnson Syndrome before Dr. Merchant prescribed the drug (or any other doctor who treated her at the Health Center), that she was allergic to Tegretol. Nor does plaintiff cite any testimony from Dr. Merchant or Dr. Quillop indicating that she told them she was allergic to Tegretol, or that Dr. Quillop made a note of it on the cover of the chart as well as within the chart under plaintiff's medical history. In fact, as Dr. Merchant points out in his partial support of the Health Center's opposition to plaintiff's motion, he testified at his deposition that at the time he prescribed the Tegretol, he did not know the name of the medication which caused plaintiff's childhood allergic reaction and plaintiff did not know the name of the medication either. Thus, on this record, there is no proof that plaintiff's allergy to Tegretol was ever noted on the cover of plaintiff's medical chart or in any other part of the chart. Rather, as the only reference to plaintiff having previously suffered an allergic reaction causing Stevens-Johnson Syndrome is contained in a medical history of the plaintiff which indicates that the reaction was caused by an unspecified pain medication, it is reasonable to infer that no notation to this unspecified pain medication was made on the cover of the medical chart. Contrary to plaintiff's conjecture, the discarded medical chart cover would not show either explicit notice to defendants of plaintiff's allergy to Tegretol or general notice to them that she [*4]was allergic to an unspecified pain medication.

Accordingly, plaintiff's motion to strike defendant Health Center's answer for alleged spoliation of evidence is denied.

Dated: August 19, 2004 J.S.C. Footnotes

Footnote 1:Plaintiff's allegations against the Health Center are stated in this way because plaintiff apparently inadvertently failed to include a copy of the Complaint with her motion papers, as the Affirmation in support of the motion states at ¶ 4 that a copy is annexed as an exhibit whose number is left blank. I am advised by the Health Center's Affirmation in Opposition at ¶ 5 that these are plaintiff's allegations against the Health Center.

Footnote 2:Plaintiff also argues that by replacing the cover of her medical chart, the Health Center violated its duty under Education Law §6530 and its corresponding regulations to maintain a record which accurately reflects the evaluation and treatment of a patient for the required number of years. Plaintiff has not shown that replacement of the cover is a violation of the statute and regulations. However, such a violation, if it exists, raises an issue altogether different from spoliation of evidence.

Footnote 3:That employee, Maria Dobrinski, is no longer employed by the Health Center. However, the date the transfer of information was accomplished and her initials appear on the new cover per instructions.