NY State Senate Bill 2023-S152

Senate Bill S152

2023-2024 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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Current Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to judiciary
Jan 04, 2023	referred to judiciary

co-Sponsors

2023-S152 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§3126 & 3101, CPLR
Versions Introduced in Other Legislative Sessions:: 2009-2010: S6131
2011-2012: S2531
2013-2014: S600
2015-2016: S2474
2017-2018: S3132
2019-2020: S293
2021-2022: S163

2023-S152 (ACTIVE) - Summary

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; establishes a cause of action on behalf of any person injured as the result of such destruction, mutilation or significant alteration; requires disclosure of metadata, audit trail, and log-in information associated with electronic medical records in certain actions.

2023-S152 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S152

SPONSOR: GIANARIS
 
TITLE OF BILL:

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; and
requires disclosure of metadata, audit trail, and log-in information
associated with electronic medical records in certain actions

 
PURPOSE:

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, including any metadata, audit trail, or
log-in information associated with any electronic 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; to require the disclosure of metadata,

audit trail, and log-in information associated with electronic medical
records in certain actions.

 
SUMMARY OF PROVISIONS:

Section 1 adds a new paragraph (b) 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 or metadata, audit trail, and log-in information
associated with electronic medical records shall be subject to a penalty
of not less than $1,000 per violation.

A new paragraph (c) 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 new paragraph (d) states that the provisions of this section of the
act are in addition to, but shall not supersede, any other rights or
remedies available in law or equity.

Section 2 adds a new subdivision (j) to section 3101 of the civil prac-
tice law and rules stating that a healthcare provider must produce any
metadata, audit trail, and log-in information associated with any elec-
tronic medical records of the person whose care or treatment is the
subject of the action.

Section 3 sets the effective date.

 
EXISTING LAW:

Click here

 
JUSTIFICATION:

This bill helps to protect patients and promote accountability for prop-
er 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 malp-
ractice 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, this bill sends a clear and
unequivocal message to all medical, non-medical and administrative
personnel that such egregious, fraudulent behavior will not be toler-
ated.

 
LEGISLATIVE HISTORY:

2022: Died in Judiciary

2021: Died in Judiciary

2020: Died in Judiciary

2019: Died in Judiciary

2018: Died in Judiciary

2017: Died in Judiciary

2016: Died in Judiciary

2015: Died in Judiciary

2014: Senate Bill 600 (Gianaris) - Died in Senate Judiciary Committee

2012: Senate Bill 2531 (Gianaris) - Died in Senate Judiciary Committee

2012: Assembly Bill 4868 (Simotas) - Died in Assembly Codes Committee

2010: Senate Bill 6131 (Schneiderman) - Died in Senate Codes Committee

2010: Assembly Bill 5239 (Gianaris) - Died in Assembly Codes Committee

 
FISCAL IMPLICATIONS:

None.

 
LOCAL FISCAL IMPLICATIONS:

Click here

 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to any inten-
tional destruction, mutilation or significant alteration of a medical
record on or after such date.

2023-S152 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    152
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced by Sens. GIANARIS, KRUEGER -- read twice and ordered printed,
   and when printed to be committed to the Committee on Judiciary
 
 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;  and
   requires  disclosure  of metadata, audit trail, and log-in information
   associated with electronic medical records in certain actions
 
   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:
   §  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.

                                                            LBD01881-01-3
 S. 152                              2
 
 or any part thereof, or rendering a  judgment  by  default  against  the
 disobedient party.
   (B)  IF  ANY PARTY TO A MEDICAL MALPRACTICE ACTION, OR A PERSON WHO IS
 OR WAS 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,  INCLUDING  ANY  METADATA,
 AUDIT  TRAIL  OR  LOG-IN  INFORMATION  ASSOCIATED  WITH  ANY  ELECTRONIC
 RECORDS, THE PARTY OR PERSON SHALL BE SUBJECT TO A CIVIL PENALTY OF  NOT
 LESS THAN ONE THOUSAND DOLLARS FOR EACH SUCH ACT, AS WELL AS COMPENSATO-
 RY AND PUNITIVE DAMAGES.
   (C)  ANY  PERSON  WHO  HAS  BEEN  INJURED  BECAUSE  OF THE INTENTIONAL
 DESTRUCTION, MUTILATION OR SIGNIFICANT ALTERATION OF A  MEDICAL  RECORD,
 INCLUDING  ANY  METADATA,  AUDIT  TRAIL OR LOG-IN INFORMATION ASSOCIATED
 WITH ANY ELECTRONIC RECORDS,  SHALL  HAVE  A  PRIVATE  RIGHT  OF  ACTION
 AGAINST  THE  PERSON  OR  ENTITY RESPONSIBLE THEREFOR TO RECOVER DAMAGES
 WHERE SUCH DESTRUCTION, MUTILATION OR SIGNIFICANT  ALTERATION  PREVENTED
 OR  SIGNIFICANTLY  IMPEDED THE ABILITY OF THE PERSON SO INJURED TO PROVE
 HIS OR HER CLAIM.
   (D) THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO, BUT  SHALL  NOT
 SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY.
   §  2.  Section  3101 of the civil practice law and rules is amended by
 adding a new subdivision (j) to read as follows:
   (J) IN ADDITION TO ANY OTHER MATTER WHICH MAY BE  SUBJECT  TO  DISCLO-
 SURE,  A HEALTHCARE PROVIDER MUST PRODUCE ANY METADATA, AUDIT TRAIL, AND
 LOG-IN INFORMATION ASSOCIATED WITH ANY ELECTRONIC MEDICAL RECORDS OF THE
 PERSON WHOSE CARE OR TREATMENT IS THE SUBJECT OF THE ACTION.
   § 3. 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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Senate Bill S152

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Sponsored By

Michael Gianaris