senate Bill S2531

2011-2012 Legislative Session

Establishes a penalty and cause of action for intentional destruction of medical records by a party to a medical malpractice action, or by an agent thereof

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to judiciary
Mar 08, 2011 committee discharged and committed to judiciary
Jan 25, 2011 referred to codes

S2531 - Bill Details

See Assembly Version of this Bill:
A4868
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd ยง3126, CPLR
Versions Introduced in 2009-2010 Legislative Session:
A5329, S6131, A5239

S2531 - Bill Texts

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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.

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BILL NUMBER:S2531

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.

EFFECTIVE DATE:


This act shall take effect immediately.

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

                                  2531

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            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.

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