Second Department Orders Adverse Inference Charge For Spoliation In NY Medical Malpractice Case

xray.jpgIn January, a Supreme Court of New York, Second Department, sanctioned the defendants for spoliation of evidence. In the case, Roman v. Ardsley Radiology, P.C., the plaintiffs allege that the defendant practitioners failed to properly read a mammogram, leading to a missed diagnosis of breast cancer. The defendants failed to produce the mammogram films, which resulted in plaintiffs’ motion accusing the defendants of spoliation.

According to Black’s Law Dictionary, spoliation is “[T]he intentional destruction, mutilation, alteration, or concealment of evidence, (usually) a document.” Under Education Law section 6530(32), failure to maintain mammogram records of a patient (unless such original records are transferred to a medical institution, physician, or the patient directly) qualifies as professional misconduct.

The court indeed found that spoliation was evident in this case, based on section 6530. Although the plaintiffs requested that the answers of the defendants be stricken, the court found this remedy extreme. Because the spoliation hindered the plaintiffs’ case, but did not leave them “prejudicially bereft of a means of proving their claims,” the court deemed an adverse inference charge pertaining to the defendants to be an appropriate sanction.

Contact Information