January 25th, 2018

Doctor Hit for Punitive Damages After Destroying Records in Child’s Death

Six-year-old Claudialee Gomez Nicanor died. And when her family’s lawyer asked the child’s doctor for her medical records, she destroyed the originals. That’s a problem.

Last week in a case of first impression in New York, our Appellate Division (Second Department) upheld an award of punitive damages in a medical malpractice case — not for the conduct that led to the death, but rather, for the effort to evade liability.

Little Chaudialee had Type 1 Diabetes and died from diabetic ketoacidosis, which results when the body can’t produce enough insulin. (It is Type 2 diabetes that’s often related to excess weight.)

The underlying medical malpractice case dealt with Dr. Arlene B. Mercado‘s failure to diagnose and treat the diabetes. The doctor is a pediatric endocrinologist and the child had arrived in her office via her pediatrician.

Mercado saw Claudialee three times, October 31, 2009, November 14, 2009, and December 12, 2009. Meanwhile, the pediatrician saw Claudialee in late November 2009, and on January 9, 2010. But:

“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.”

After the child died, and after the lawyers asked for the records, the good doctor thought it would be a great idea to type up the scribbled notes she originally made and destroy the originals for the November and December visits.

The problem is that on the last visit to Mercado on December 12th, the family was told to bring her back on February 13th. And they had the appointment card showing it.

The typed notes, however, claimed something else: That the child was to come back in just four weeks (before the child was ultimately hospitalized). Those are the same notes that were typed up after the child had died and after the lawyers asked for the records:

“Q. Now, you told us that you created the typed written part for the Halloween, the 10/31 visit after you got the letter from my office, did you do all three of them at the same time?

“A. Yes.

“Q. So this one was done without the help of any squiggly notes; is that right?

“A. No.

“Q. No?

“THE COURT: You had notes?

“THE WITNESS: I have like piece of paper, but after typing—

“THE COURT: Where is it[?]

“THE WITNESS:—I throw them out. After typing I will throw them out.

“THE COURT: Four months later you throw them out?

“THE WITNESS: Yes.”

The doctor also gave conflicting claims as to when she typed up the first set of notes, which was important because the typed version included information not reflected in the handwritten record of that visit.

The underlying malpractice claim was that the doctor committed malpractice by “not teaching the child’s family about symptoms of diabetes—such as weight loss, tiredness, lightheadedness, excessive thirst, and excessive urination—and by not recommending that Claudialee’s family perform home testing to measure the child’s blood sugar and ketones.”

The doctor was  also faulted for assuming that the child was developing type 2 diabetes and not even considering that the child was developing type 1 diabetes.

The jury found that Mercado was negligent, that the negligence caused injury and death, and awarded $400,000 in pain and suffering and $100,000 in monetary loss. (New York is one of only a few states that does not allow an award to grieving families for the loss of a family member.)

But this was the kicker: $7.5M in punitive damages. While that award was reduced by the trial court to $1.2M, and further reduced by the Appellate Division to $500K, it was the very issue of punitive damages for the destruction of evidence in order to evade liability that lit up the decision.

The court was firm (and unanimous) in stating — and this is the entire point of this post — that punitive damages serve to deter the wrongful conduct of destroying records to evade liability.

[W]e now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.

Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.

And the fact that there might be also be disciplinary action should not deter a court from submitting this to the jury. As the court noted:

However, the possibility of other consequences, such as professional disciplinary action or spoliation sanctions, should not preclude medical professionals from being subject to punitive damages for altering or destroying medical records in an effort to evade potential medical malpractice liability. … the present case illustrates that the availability of disciplinary proceedings is not sufficient to protect plaintiffs from such conduct, since Mercado was clearly not deterred by the possibility of such disciplinary action.

Finally, the court rejected the argument that there was no damage from the destruction of the records, since the plaintiff was able to prevail despite it. In other words, the defendant argued that there should be no penalty for her action. The court was not amused at this request for immunity from wrongful conduct:

We also reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original records did not prevent the plaintiff from successfully prosecuting this action. The fact that the plaintiff was able to prove the medical malpractice cause of action against Mercado, despite Mercado’s destruction of original records, should not insulate Mercado from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort. Indeed, it has been observed that “[i]f the act of altering and destroying records to avoid liability is to be tolerated in our society, we can think of no better way to encourage it than to hold that punitive damages are not available” in such circumstances.”

Going forward, this case won’t be limited to medical malpractice cases. I foresee this case being used and cited in any kind of case dealing with spoliation of evidence. For such cases all deal with the same concept of punishing a party for trying to evade liability by destroying evidence.

While one tool in the judge’s toolbox is simply to strike the answer of a defendant for having engaged in such practices, that merely puts plaintiffs where they otherwise would have been anyway had the malfeasance not taken place. There was no downside. Now there is.

The case is Gomez v. Cabatic


See follow-up (1/26/18): A NY Court’s Thin Reasoning on Punitive Damages

 

May 22nd, 2017

New York’s Grieving Families

Once upon a time — like in 1847 — New York was a progressive state. We had, I believe, the first ever wrongful death statute for the benefit of families whose bread-winner was killed due the negligence of others.

And back then that was progressive.

The problem is that we have stagnated. This first-ever law has never been updated.

Essentially, if a family’s non-breadwinner is killed by the negligence of others, that person’s life — in the eyes of New York’s law — is worthless. Because there is no “economic loss” associated with the death. Mostly this means a child or retiree. Neither an infant, nor college student nor retired parent is likely to be providing an “economic” benefit in New York.

The grief of family members is, in New York, completely non-compensable.

Just as I addressed Lavern’s Law last week — the proposed legislation that measures the medical malpractice statute of limitations from the time the malpractice could reasonably have been discovered instead of when it happened — I address different legislation today.

If I can do my little part to help push New York into the 21st century I’ll be happy.

There is really no justification for telling families of the deceased that the court house doors are closed to them for their grief. Many of our sister states have such legislation. When out out-of-state lawyers call me to discuss potential wrongful death matters in New York, they are stunned to hear of the antiquated state of our civil justice system.

For many people, the courts are the only outlet for justice. We don’t encourage vigilantism, by any means, and a working, viable justice system is part of what makes a society function in a semi-civil fashion.  And having this outlet oft-times provides a small means of holding people or companies accountable so that the same thing doesn’t happen to someone else’s kid, or parent.

In the Assembly the bill is A. 1386. (Updated: and the bill has moved out of the Judiciary committee into the Codes committee last week.)

In the Senate the bill is S. 411. (Updated: the bill is stalled here).

The legislature is in session now and considering the bill.

If you don’t know your legislators, you can find them here by simply popping in your address. (Updated: Contacting your Senator is most important, since that is where the bill is stalled.)

Give a call to voice your support. It takes only a few moments.

 

 

May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers.  There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
——————————

Marc Dittenhoefer

Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end?  Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in  the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.

 

 

December 7th, 2011

The Ostrich Offense

Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)

But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.

The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” (citations omitted)

The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.

I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.

(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)

More on The Ostrich Case:

Was Judge Posner a Dodo in His Ostrich Opinion? (Lat @ Above the Law)

Who’s the Ostrich? (Palazzolo @ WSJ Law blog) – in which the mocked lawyer responds

Judge compares lawyer to ostrich (Pallasch @ Chicago Sun-Times) Lawyers don’t recall ever seeing pictures to make rhetorical point.

 

July 27th, 2011

Taconic Wrong-Way Crash: Does State Share Part of the Blame?

Source: New York Times

Two years after a horrific wrong-way crash on the Taconic Parkway made national headlines when eight people were killed, a new lawsuit was filed that looks to examine if the State of New York shares blame.

Toxicology reports after the crash had showed minivan driver Diane Schuler was drunk and high when going the wrong way on the Taconic while loaded down with kids, only to slam head-on into an SUV carrying Michael Bastardi Sr., Guy Bastardi and Daniel Longo of Yonkers. All three were killed. Ms. Schuler of Long Island was also killed, as were one of her own children and three nieces in her minivan. The sole survivor of the crash was another of Schuler’s children, 5-year-old Bryan.

Now comes a lawsuit by the Estate of Diane Schuler against the State of New York that owns and maintains the highway, which will explore whether the State shares responsibility for this horrific crash with Ms. Schuler.

While the gut reaction of many is to demonize the drunk driver and vilify the husband for defending her, that is not my gut response when I put on my lawyer hat. For if the entrance/exit ramp was poorly designed and signed (I write “if” since I don’t know), then in fact there may be some portion of liability for the State. And that comes under the theory that, if poorly designed, this was an accident waiting to happen. A trap for the unwary, or impaired.

And remember that impairment may take several forms, not just the self-induced kind. There could be weather or medical conditions that could likewise cause impairments. This is not exactly unknown to those that design roadways who are charged with the duty of making them as safe as reasonably possible.

So if, in fact, a defective roadway design is found (and there may well be other complaints/incidents regarding it that the attorneys would be looking to investigate), then we may see the State of New York on the hook for a portion of the damages.

In today’s Journal NewsMichael Bastardi Jr., who lost his father and brother in the crash, was quoted as saying that:

“Daniel Schuler (the husband) is blaming “everything and everyone except his wife.”

“He’s just avoiding the true reasons on why this all happened,” the younger Bastardi said. “It’s pathetic and it’s an insult to all of us.”

Mr. Bastardi may be right, but then again he might be partially in error if there were other incidents or complaints regarding the same entrance/exit interchange. And that is the part where we need to put on our thinking caps, and go through the issues of whether a wrong way driver was reasonably foreseeable at that spot, and what (if anything) could have been done about it. It may well be a fruitless exercise, but one can’t reach that verdict without at least looking at the evidence.

There are a lot of lawsuits in this case — at least five I think — with loads of different conflicts due to the nature of family members being killed. For example, Daniel Schuler is a victim, having lost his wife and child and had another badly injured. He and his young children have sued their mother, and he represents them. And he may also be a beneficiary of suits by the Estates of his wife and lost daughter.   And Warren Nance, sister of Diane Schuler and father of the three daughters killed in the crash is a victim, plaintiff, and defendant (as owner of the car and having had a discussion with Diane that day).

As a result, I won’t try to  untangle the mess of lawsuits going on, and confine myself to the narrow subject of the suit against the State, but for those interested, here is a list of the suits (I’ve shortened the titles a bit), with some of the documents, followed by additional news links.

Also, note that suits against the State can only be brought in the Court of Claims, and are non-jury. Court of Claims suits may not have other defendants, thus the litigation proceeds on two tracks even if all the other cases brought in the main trial court (Supreme Court) are consolidated.

These are the suits, as best I can determine, with the first one being the Court of Claims case:

1.   Daniel Schuler, as administrator of the Estate of Diane Schuler, and Brian Schuler, an infant by his father and natural guardian, Daniel Schuler v. The State of New York (David Waterbury is plaintiff’s counsel, who I know for about 20 years; Schuler-CourtOfClaims-S&C
2.   Daniel Schuler, as administrator of the estate of Erin Schuler, and Brian Schuler, an infant by his father and natural guardian, Daniel Schuler v. The Estate of Diane Schuler, Estate of Michael Bastardi, and Warren Hance (Kevin T. Greenan is plaintiffs’ counsel;  SchulerSupremeCourtS&C)
3.  Joseph Longo As Administrator Of The Estate Of Daniel Longo v. the Estate Of Diane Schuler, Warren J. Kance, and Roseann M. Guzzo As Administratrix Of The Estate Of Guy T. Bastardi (LongoSummonsandComplant; John Guarneri, counsel for the plaintiff)

4. Roseann M. Guzzo, as Administratrix Of Estate Of Guy T. Bastardi, and Roseann M. Guzzo and Irving Anolik, as Co-Executors of the Estate of Michael Bastardi, Sr. v. Estate Of Diane Schuler, and Warren J. Hance (BastardiSummonsandComplant; Brian Sichol is plaintiff’s counsel)

5.  I don’t have a copy of this one yet, but the three Hance nieces v. Estate of Diane Schuler and ?  (Represented by Kenneth Pryor of Mineola)

ABC News:  Mother of 3 Girls Killed in Taconic Crash Sues Daniel Schuler

New York Post: Wrong Way Family Feud

OverlawyeredDiane Schuler’s husband suing state, brother-in-law over wrong-way Taconic crash