- September 16, 2016
Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg
and Sean F. X. Dugan of counsel), for appellant-respondent.
A. Hayt, New York, NY (Brian Isaac of counsel), for
Augustine Conroy & Schoppmann, P.C., Westbury, NY
(Michael A. Schoppmann and Donald R. May of counsel), for
amicus curiae Medical Society of the State of New York.
M. LEVENTHAL, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN SANDRA
L. SGROI, JJ.
OPINION & ORDER
by the defendant Arlene B. Mercado, also known as Dr. Arlene
Basa Mercado, in a consolidated action to recover damages for
wrongful death, etc., as limited by her notice of appeal and
brief, from so much of an order of the Supreme Court, entered
in Queens County on April 7, 2014 (Darrell L. Gavrin, J.), as
denied those branches of her motion, in effect, pursuant to
CPLR 4404(a) which were to set aside a jury verdict on the
issue of punitive damages and for judgment as a matter of law
dismissing the demand for punitive damages, or, in the
alternative, to set aside the jury verdict on the issue of
punitive damages as contrary to the weight of the evidence or
in the interest of justice, and for a new trial on the issue
of punitive damages, and granted that branch of her motion
which was to set aside the jury verdict on the issue of
punitive damages as excessive only to the extent of ordering
a new trial on the issue of punitive damages unless the
plaintiff stipulated to a reduction of the punitive damages
award from the principal sum of $7, 500, 000 to the principal
sum of $1, 200, 000, and CROSS APPEAL by the plaintiff, as
limited by his brief, from so much of the same order as, in
effect, granted that branch of that defendant's motion
which was to set aside the jury verdict on the issue of
punitive damages as excessive to the extent of ordering a new
trial on the issue of punitive damages unless he stipulated
to a reduction of the punitive damages award from the
principal sum of $7, 500, 000, to the principal sum of $1,
main question before us is whether a plaintiff may recover
punitive damages for a medical professional's act of
altering or destroying medical records in an effort to evade
potential medical malpractice liability. We answer this
question in the affirmative.
action arises from the death of a six-year-old child,
Claudialee Gomez Nicanor, who developed diabetic ketoacidosis
after the defendant Arlene B. Mercado failed to diagnose the
child's type I diabetes. According to the evidence
presented at trial, the child, who was born in December 2003,
received her early pediatric care at two different hospitals.
On October 26, 2009, when Claudialee was five, the defendant
Thelma O. Cabatic became the child's pediatrician. A few
days later, Cabatic recommended that Claudialee see a
pediatric endocrinologist because the child's blood sugar
level was high. The child's mother asked Cabatic for the
name of an endocrinologist, and Cabatic referred her to
Mercado. Mercado saw Claudialee three times, October 31,
2009, November 14, 2009, and December 12, 2009. Meanwhile,
Cabatic again saw Claudialee in late November 2009, and on
January 9, 2010.
January 21, 2010, Claudialee returned home from school
complaining that she was tired and did not feel well, and
brought with her a note from the school nurse describing her
symptoms. The child vomited that evening and said that she
had a stomach ache. The next day, after having tried,
unsuccessfully, to have Claudialee seen by Cabatic, the
child's mother took Claudialee to a hospital. Claudialee
remained hospitalized until her death on January 24, 2010.
According to the final autopsy report, the child's death
was "attributable to bilateral cerebellar tonsilar
herniation secondary to cerebral edema following diabetic
father, Napoleon Gomez, as administrator of the child's
estate (hereinafter the plaintiff), subsequently commenced
separate actions against Cabatic and Mercado seeking to
recover damages for medical malpractice and wrongful death.
The two actions were thereafter consolidated.
relevant to the issues raised on appeal, at her examination
before trial, Mercado gave testimony indicating that she
prepared and signed a typewritten report memorializing
Claudialee's first visit on October 31, 2009, the same
day that visit occurred. Specifically, Mercado was asked and
"Q. When was the first time you saw her?
"Q. That appears on page four of Plaintiffs Exhibit B.
Is that correct?
"Q. Your examination-or you issued a report in
connection with this examination. Is that right?
"Q. And is this a two-page report that you issued that
day or you issued in connection with seeing the patient that
"Q. And did you sign that document?
"A. I did.
"Q. What date did you sign the document on?
"A. The date where I had-you know, the 10/31/09.
"Q. Were you involved in typing this report?
typewritten record for the child's final visit with
Mercado on December 12, 2009, stated, ''[n]ext visit
to record random BG's fasting and 2 hour post meal. TCB
in 4 weeks.'' During her examination before trial,
Mercado was shown an appointment card indicating that the
child was not scheduled to return for an appointment with her
until February 13, 2010, about two months later. Mercado said
that her nephews were responsible for scheduling patient
appointments and that she was not involved in selecting the
February 2010 date.
the course of her trial testimony, Mercado stated that she
wrote a letter, dated February 26, 2010, thanking Cabatic for
referring the child to Mercado, and attaching
"consult/follow-up visit notes." Mercado denied
being aware of the fact that Claudialee had been dead for
more than one month when she wrote the letter. When asked
whether she decided to send her chart to Cabatic "[j]ust
[out] of the blue, " Mercado answered, "[y]ou have
a letter also to request for the record.' Mercado
acknowledged that the plaintiff's attorney's firm
sent a letter asking for the medical records and that
Mercado's sister, who was Mercado's office manager,
sent a certified copy of the records to the firm. Mercado was
asked, and answered, in part:
"Q. We sent a letter asking for records, okay, but on
February 26 you sent a copy of the chart you said in response
to having gotten the letter from me. You sent a copy of your
chart to Dr. Mercado?
"A. No, Dr. Cabatic.
"Q. Dr. Cabatic, I apologize. And then a couple of weeks
later you sent it to us, ...