Today was the first time a New York Appellate Court upheld an award of punitive damages against a physician for “destroying medical records in an effort to evade potential medical malpractice liability.” A Queens County jury had awarded punitive damages of $7,500,000 which the trial judge reduced to $1,200,000. On appeal to the Appellate Division, Second Department, the award for punitive damages was upheld but again reduced to $500,000. An additional award of compensatory damages of $500,000 was not challenged.

This was a wrongful death action on behalf of a 6 year old girl against a pediatrician and a pediatric endocrinologist who both failed to diagnose the child's Type 1 diabetes. As a result, the child developed diabetic ketoacidosis resulting in cerebral edema which caused her tragically unnecessary death. In Type 1 diabetes the body's immune system attacks the pancreas where insulin is made. The plaintiff's expert explained that: “in Type 1 diabetes if we don't give them insulin they will die.” The expert also explained that there is a 99.9% chance that a 5 year old with diabetes has Type 1. The jury also awarded $400,000 for the child's pain and suffering and $100,000 for the family's monetary loss.

At the pre-trial deposition the doctor claimed she had typed up her handwritten medical notes on the date of each visit. However, the doctor admitted at trial that four months after her patient died, she destroyed her handwritten notes and prepared typed reports for two critical visits because the family's attorney requested all her medical records. The typed reports were demonstrably fabricated to hide the doctor's ignorance of the child's life threatening condition. Gomez v Mercado, 2018 WL 444195