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Gomez v. Cabatic

Supreme Court of New York, Second Department

January 17, 2018

Napoleon Gomez, etc., respondent-appellant,
v.
Thelma O. Cabatic, etc., et al., defendants, Arlene B. Mercado, also known as Dr. Arlene Basa Mercado, appellant-respondent. Index No. 12872/11

          Argued - September 16, 2016

          Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and Sean F. X. Dugan of counsel), for appellant-respondent.

          Paul A. Hayt, New York, NY (Brian Isaac of counsel), for respondent-appellant.

          Kern 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.

          JOHN M. LEVENTHAL, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN SANDRA L. SGROI, JJ.

          OPINION & ORDER

          LEVENTHAL, J.P.

         APPEAL 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, 200, 000.

         The 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.

         Background

         This 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.

         On 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 ketoacidosis.''

         Claudialee's 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.

         As 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 answered:

"Q. When was the first time you saw her?
"A. 10/31/09.
"Q. That appears on page four of Plaintiffs Exhibit B. Is that correct?
"A. Yes.
"Q. Your examination-or you issued a report in connection with this examination. Is that right?
"A. Yes.
"Q. And is this a two-page report that you issued that day or you issued in connection with seeing the patient that day?
"A. Yes.
"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?
"A. Yes.'

         The 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.

         During 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, ...

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