In Gomez v. Cabatic, 159 A.D.3d 62 (2d Dept., Jan. 17, 2018), the court held that “[w]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.” Id. at 76.

Gomez arose from the death of the plaintiff’s daughter, who developed a fatal chemical imbalance after the defendant Dr. Mercado failed to diagnose the child’s type 1 diabetes. During her deposition in the ensuing action for medical malpractice and wrongful death, Dr. Mercado testified that, after receiving a medical records request from the plaintiff’s attorney, she destroyed certain notes memorializing two office visits with the child. At the trial, the court instructed the jury that it could award punitive damages against Dr. Mercado if the plaintiff established, by clear and convincing evidence, that she had “maliciously” destroyed her records. Finding for the plaintiff, the jury in Gomez awarded damages of $400,000 for the child’s pain and suffering and $100,000 for monetary loss sustained as a result of the child’s death. The jury also found that the plaintiff was entitled to a punitive award. Following a separate trial to determine the amount of punitive damages, the jury returned a punitive award of $7,500,000. Upon the defendant’s post-trial motion, the trial court held that the plaintiff was entitled to recover punitive damages, but conditionally reduced the award on the ground of excessiveness to the sum of $1,200,000.