Establishes a penalty of not less than $1,000 for each intentional destruction, mutilation or significant alteration of a medical record by a party to a medical malpractice action, or by any officer, director, member, employee or agent of such party; also establishes a cause of action on behalf of any person injured as the result of such destruction, mutilation or significant alteration.
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to establishing a penalty and cause of action for the intentional destruction, mutilation or significant alteration of certain medical records
PURPOSE OR GENERAL IDEA OF THE BILL: To deter fraud by providing that any party, or person who at the time that an action for medical malpractice is commenced is an officer, director, member, employee or agent of a party or otherwise under the party's control, who intentionally destroys, mutilates or significantly alters any medical records shall be subject to a civil penalty of not less than $1,000 for each violation. To provide an individual who is injured as a result of the destruction, mutilation or alteration the ability to bring an action and hold the responsible parties accountable.
SUMMARY OF SPECIFIC PROVISIONS: Adds a new undesignated paragraph to section 3126 of the civil practice law and rules stating that any party, or person who is an officer, director, member, employee or agent of a party, or otherwise under the parties' control at the time that an action for medical malpractice is commenced, who intentionally destroys, mutilates or significantly alters any medical records shall be subject to a penalty of between $1,000 and $10,000 per violation. Also states that any person who has been injured as a result of the destruction, mutilation or alteration may bring an action against the party and/or person responsible to recover damages if such destruction made it impossible or significantly impeded the plaintiff's ability to prove his or her initial claim. A judge may also strike an offending party's pleadings and render a judgment by default against the offending party if the affected records are crucial to a determination on the issue of liability.
JUSTIFICATION: This bill helps to protect patients and promote accountability for proper medical care by establishing penalties for the intentional destruction, mutilation or alteration of medical records. The destruction and alteration of medical records to cover up alleged malpractice can have severe consequences for the victim, who may not be able to prove his or her claim without the vital information contained within those records. By creating a private right of action for the person who has been injured by such destruction against those who are responsible individuals, this bill sends a clear and unequivocal message to all medical, non-medical and administrative personnel that such egregious; fraudulent behavior will not be tolerated.
PRIOR LEGISLATIVE HISTORY: None.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT: None.
This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 2531 2011-2012 Regular Sessions IN SENATE January 25, 2011 ___________Introduced by Sen. GIANARIS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the civil practice law and rules, in relation to estab- lishing a penalty and cause of action for the intentional destruction, mutilation or significant alteration of certain medical records THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 3126 of the civil practice law and rules, as amended by chapter 98 of the laws of 1993, is amended to read as follows: S 3126. Penalties for refusal to comply with order or to disclose. (A) If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the fail- ure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be deter- mined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05798-01-1 S. 2531 2
(B) IF ANY PARTY, OR A PERSON WHO AT THE TIME THAT AN ACTION FOR MEDICAL MALPRACTICE IS COMMENCED OR THEREAFTER IS AN OFFICER, DIRECTOR, MEMBER, EMPLOYEE OR AGENT OF A PARTY OR OTHERWISE UNDER THE PARTY'S CONTROL, INTENTIONALLY DESTROYS, MUTILATES OR SIGNIFICANTLY ALTERS ANY MEDICAL RECORD, THE PARTY OR PERSON SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS FOR EACH SUCH ACT. IN ADDITION, ANY PERSON WHO HAS BEEN INJURED BECAUSE OF SUCH INTENTIONAL DESTRUCTION, MUTILATION OR SIGNIFICANT ALTERATION OF A MEDICAL RECORD MAY BRING AN ACTION AGAINST THE PARTY AND/OR PERSON RESPONSIBLE THEREFOR TO RECOVER DAMAGES IF SUCH DESTRUCTION OF EVIDENCE MADE IT IMPOSSIBLE OR SIGNIF- ICANTLY IMPEDED THE PLAINTIFF'S ABILITY TO PROVE HIS OR HER CLAIM. THE COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF. S 2. This act shall take effect immediately and shall apply to any intentional destruction, mutilation or significant alteration of a medical record occurring on or after such date.