On October 26, 2009, when six year old Claudialee Gomez Nicanor was examined by her pediatrician, a test revealed that her blood had an excessive amount of glucose so she was referred to an endocrinologist in Elmhurst, Dr. Arlene Basa Mercado.
On October 31, 2009, Dr. Mercado examined Claudialee and diagnosed obesity and impaired tolerance of glucose. She assumed her patient was developing type 2 diabetes but failed to consider it could have been type 1 and determined that she would not respond to the administration of glucose. During the next three months, Claudialee was seen by the two doctors but no further treatment was prescribed.
On January 24, 2010, Claudialee died as a result of diabetic ketoacidosis (a serious complication of diabetes that occurs when one’s body produces high levels of blood acids called ketones).
In the ensuing medical malpractice case, plaintiff’s medical expert testified unequivocally that had Claudialee’s blood been tested on or before three days before she died, her type 2 diabetes would have been revealed and insulin would have saved her life.
After a six week trial, the Queens County jury determined that Dr. Mercado departed from good and accepted medical practice in her diagnosis, care or treatment of Claudialee and that the departure was a substantial factor in causing injury which resulted in her death. They then awarded pain and suffering damages in the sum of $400,000 (two days) plus economic damages for the monetary loss to Claudialee’s parents in the sum of $100,000.
The estate’s counsel also sought punitive damages claiming that Dr. Mercado maliciously destroyed handwritten notes of her office evaluations of Claudialee that were recreated (after she knew she was about to be sued for malpractice) to suggest that the doctor had scheduled more timely follow-up examinations. The jury agreed that the defendant’s actions warranted the imposition of punitive damages and in a separate deliberation, the jury awarded punitive damages in the sum of $7,500,000.
On appeal in Gomez v. Cabatic (2d Dept. 2018), the defendant’s destruction of her records in an effort to evade malpractice liability was set forth in detail but the award of punitive damages was reduced to $500,000.
- The defendant did not appeal either the liability determination or the awards for pain and suffering and economic damages.
- Dr. Mercado acknowledged that she destroyed her handwritten office notes but claimed that they were accurately and fully transcribed before being destroyed.
- Eric Turkewitz at New York Personal Injury Law Blog, called this a case of first impression because the appellate court “upheld an award of punitive damages in a medical malpractice case – not for the conduct that led to the death, but rather, for the effort to evade liability.”