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Was there 'spoliation of evidence' in this case?

MICHAEL SIRYL WAS BORN PREMATURELY, ON NOVEMBER 17, 1997, AND SUFFERED FROM LIFE-THREATENING CONGENITAL HEART ABNORMALITIES.

He was transferred to Mount Sinai Hospital the day he was born. Then, the hospital was the only hospital in New York State with a PCICU, and only one of a few hospitals in the country with a PCICU. On November 18, a balloon atrial septotomy was performed to temporarily increase Michael's oxygen concentration, and on November 25, an arterial switch operation was performed. A post-operative bleed warranted a re-exploration of Michael's chest on November 28. After that procedure, Michael had difficulty in maintaining adequate oxygenation and blood pressure. On December 1, Michael was diagnosed with the first of several sepsis episodes. By December 13, both his respiratory and hemodynamic statuses showed improvement. A neurology note dated December 15, indicated that Michael had opened his eyes and followed large objects. On December 16, Michael was in the PCICU, still on a ventilator attached to a 3.5 millimeter ETT. Among the physicians in the PCICU at that time was its director, Dr. Anthony Rossi. That day a PCICU nurse, Janice Migniuolo, inspected the ETT, advanced a suction catheter down it, and to keep the ETT from becoming obstructed with mucous and interfering with ventilation. She began to suction it with a device on the wall, which allowed her to control the force of the suction. She noted some yellow blood-tinged raucous, but nothing out of the ordinary. Later in the day, at about 4:30 p.m., when she went to suction the ETT, a profuse amount of blood, eventually diagnosed as from a pulmonary hemorrhage, came up the tube, requiring the ETT, which kept filling with blood, to be removed and reinserted three times. The chart indicated that with the third intubation, the secretions lessened. At 5:00 p.m., a transfusion of packed red blood cells was ordered to be given over the course of 30 minutes. While the records were not clear, the blood was apparently given somewhere between 4:30 p.m., and 6:00 p.m. An x-ray taken at 5:08 p.m., revealed that Michael's left lung had collapsed. According to Dr. Rossi, the x-ray also showed some haziness, and a little bit of "white out" in the right lung, characterized as the "very early beginning of some kind of pathologic process in the alveoli." Michael's parents sued the hospital and an unnamed nurse alleging medical malpractice caused Michael's pulmonary hemorrhage, and severe brain damage, which made him dependent on his parents. During discovery, the hospital claimed it could not locate the records for the critical time in question. The plaintiffs moved for summary judgment or, in the alternative, that the hospital's answer be stricken on the grounds it was guilty of spoliation of evidence.

[ILLUSTRATION OMITTED]

THE SUPREME COURT OF NEW YORK, NASSAU COUNTY, DENIED THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS WELL AS ITS MOTION TO STRIKE THE HOSPITAL'S ANSWER TO THE COMPLAINT.

However, it did so without prejudice. Simply put, this meant that the plaintiffs were not barred from renewing their motions during the course of the trial, which was to follow. Further, the court stated, with specificity, that it advised the plaintiffs that its decision was without prejudice to any application plaintiffs were advised to make at trial for a 'missing documents' charge. The court found that the fact that the plaintiffs were uncertain whether Dr. Rossi or Dr. Sommer performed the procedure on Michael was irrelevant, since neither recalled the procedure, and there was a lack of any claim that the hospital would not be liable for either Dr. Rossi or Dr. Sommer.

A PARTY SEEKING THE IMPOSITION OF SANCTIONS FOR SPOLIATION OF EVIDENCE MUST DEMONSTRATE THAT THE ENTITY OR INDIVIDUAL SOUGHT TO BE SANCTIONED WAS RESPONSIBLE FOR THE LOSS OR DESTRUCTION OF EVIDENCE CRUCIAL TO THE CASE.

The court readily admitted that it could not ascertain whether the records were not available because of simple negligence, or as the result of an intentional act, which would, in fact, constitute deliberate spoliation of evidence, which can result in severe sanctions for the responsible party. In fact, the court was not certain as to whether or not the subject records ever existed! Editor's Note: After many years in the practice of law, which have included the representation of a number of hospitals as well as other health care providers, including physicians and nurses, your editor has always been suspect any time records which are critical to the outcome of a case against a health care provider are either "lost," or "missing." Invariably, the "missing" records, which were in the possession and control of the defendant accused of malpractice are records that would be detrimental to the party who cannot locate them, for whatever, reason! Siryl v. The Mount Sinai Hospital, 2010-30003(1/4/2010) - NY
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Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Mar 1, 2010
Words:812
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