S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4868

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2011
                               ___________

Introduced  by M. of A. SIMOTAS -- read once and referred to the Commit-
  tee 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

              

A. 4868                             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.