S T A T E   O F   N E W   Y O R K
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                                  5239

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2009
                               ___________

Introduced  by  M.  of  A.  GIANARIS, CANESTRARI, MAYERSOHN, CYMBROWITZ,
  ORTIZ, CUSICK, MARKEY, ESPAILLAT, TITONE -- Multi-Sponsored by  --  M.
  of  A.  BOYLAND,  BRENNAN,  BRODSKY,  COLTON,  FARRELL, GALEF, HIKIND,
  V. LOPEZ, McENENY, PERALTA, PHEFFER, TOWNS, WEISENBERG  --  read  once
  and referred 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05742-01-9
              

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or any part thereof, or rendering a  judgment  by  default  against  the
disobedient party.
  (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.