*1APPEAL by the defendant Arlene B. Mercado, also known as Dr. Arlene Basa Mercado, in a consolidated action to recover damages for wrongful death, etc., as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, entered in Queens County on April 7, 2014 (Darrell L. Gavrin, J.), as denied those branches of her motion, in effect, pursuant to CPLR 4404(a) which were to set aside a jury verdict on the issue of punitive damages and for judgment as a matter of law dismissing the demand for punitive damages, or, in the alternative, to set aside the jury verdict on the issue of punitive damages as contrary to the weight of the evidence or in the interest of justice, and for a new trial on the issue of punitive damages, and granted that branch of her motion which was to set aside the jury verdict on the issue of punitive damages as excessive only to the*2
extent of ordering a new trial on the issue of punitive damages unless the plaintiff stipulated to a reduction of the punitive damages award from the principal sum of $7,500,000 to the principal sum of $1,200,000, and CROSS APPEAL by the plaintiff, as limited by his brief, from so much of the same order as, in effect, granted that branch of that defendant’s motion which was to set aside the jury verdict on the issue of punitive damages as excessive to the extent of ordering a new trial on the issue of punitive damages unless he stipulated to a reduction of the punitive damages award from the principal sum of $7,500,000, to the principal sum of $1,200,000.JOHN LEVENTHAL, J.OPINION & ORDERThe main question before us is whether a plaintiff may recover punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. We answer this question in the affirmative.BackgroundThis action arises from the death of a six-year-old child, Claudialee Gomez Nicanor, who developed diabetic ketoacidosis after the defendant Arlene B. Mercado failed to diagnose the child’s type I diabetes. According to the evidence presented at trial, the child, who was born in December 2003, received her early pediatric care at two different hospitals. On October 26, 2009, when Claudialee was five, the defendant Thelma O. Cabatic became the child’s pediatrician. A few days later, Cabatic recommended that Claudialee see a pediatric endocrinologist because the child’s
