Going in for My Spoliation Surgery Tomorrow

A trial court had held that nonemergency spinal surgery was “spoliation of evidence” in a case stemming from a spinal injury, because “the preservation of [] body parts in an intact state available to all parties for review is essential.”

From Gilliam v. Uni Holdings, decided last month by the N.Y. intermediate appellate court, in an opinion by Judge Scarpulla:

This appeal hinges on whether the condition of one's body is the kind of evidence that is subject to a spoliation analysis.

The case arises from an accident that took place on June 25, 2017, when plaintiff Jekeya Gilliam was struck by a falling portion of the bathroom ceiling in her apartment …. As a result of the accident, plaintiff allegedly sustained, among other things, injuries to her lumbar spine, including a bulging L4-L5 disc….

Plaintiff commenced this negligence action against defendant [building owner] on May 22, 2018. In a preliminary conference order, entered on August 10, 2018, [the trial court] ordered that plaintiff must appear for an "independent" medical examination (ME) within 45 days of her deposition. Then, in an October 26, 2018 compliance conference order, the court ordered that plaintiff's ME be held within 45 days from defendant's designation of a physician to perform the ME.

Plaintiff was deposed on January 7, 2019. Approximately one month later, defendant served plaintiff's counsel with an ME Designation Notice which stated that Dr. Daniel Feuer was designated to conduct plaintiff's ME on March 6, 2019. Plaintiff did not appear for the March 6th ME.

On April 2, 2019, plaintiff underwent a discectomy to her lumbar spine. Defendant served a second ME Designation Notice on April 3, 2019 that scheduled the exam for May 15, 2019. Plaintiff filed a supplemental bill of particulars on April 9, 2019 in which she disclosed the lumbar spine surgery and attached a HIPAA release form. Plaintiff appeared for an ME on the date scheduled in May….

[The trial court] denied defendant's motion to dismiss but sanctioned plaintiff by precluding her "from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery."

The court opined that, in a personal injury action "the preservation of [] body parts in an intact state available to all parties for review is essential. Therefore, parts of an injured plaintiff's body fit comfortably into the type of evidence that can be spoliated. The plaintiff does not dispute that her lumbar spine has been altered from its pre-surgery condition. Here, the condition of the plaintiff's L5-SI lumbar spine was crucial evidence in determining the extent to which it was damaged as a result of the underlying accident."

In support of its spoliation order, [the trial court] cited other trial court decisions and held that "'a plaintiff who submits to non-emergency and non-life-threatening surgery prior to a court-ordered physical examination has committed spoliation of evidence.'" We now reverse and hold that the condition of one's body is not the type of evidence that is subject to a spoliation analysis. And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one's body, they should not be followed. To so hold would improperly subject a plaintiff's health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Spoliation refers to evidence which is destroyed or substantially altered. New York spoliation cases encompass both the willful and negligent destruction of evidence. Over time, the courts have developed a set of criteria for determining whether evidence has been spoliated. Thus, a party seeking sanctions for spoliation "must establish that the non-moving party had an obligation to preserve the item in question, that the item was destroyed with a culpable state of mind, and that the destroyed item was relevant to the party's claim or defense."

Spoliation analysis has long been applied to a party's destruction of inanimate evidence [such as a pipe containing asbestos, a chair, surveillance videos, a computer, email, and the like].

The state of one's body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an "obligation," to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

It should also be noted that defendant has mischaracterized the nature and role of "independent" MEs in personal injury litigation, presumably to cast plaintiff's surgery as an egregious and sanctionable act. Such examinations "far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee's claimed injury and to dispute the need for any treatment at all." Viewed in this context, an ME is simply one piece of evidence in a personal injury action.

Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor's advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury….

In addition, defendant was not "prejudiced" by plaintiff's medical treatment, as there is other evidence upon which defendant may rely, including plaintiff's pre-surgical and post-surgical medical records….

UPDATE: Thread winner, from Allan L.: "Spoliosis?"

FURTHER UPDATE: I've changed "Supreme Court" in the opinion to "[trial court]," since of course some readers might be confused by New York practice, in which the trial court is called the Supreme Court (and the state high court is called the Court of Appeals, with what most states call the courts of appeals being called the Appellate Division).

Comments

[Bored Lawyer]

Seems right. Couple of questions, though:

(1) Suppose the defendant demands that its doctor examine the person (which is typical in PI cases) before the surgery. Does the person have a duty to first let himself be examined and then get the surgery, assuming it is not an emergency surgery?

(2) What about mitigation of damages? I can see how putting off a surgery could make the injury worse, or at least not better. Doesn’t the trial court’s ruling put the plaintiff in a Catch-22 between spoliation and failure to mitigate?
(This point actually applies even to evidence that is not someone’s body. I am involved in a construction case now, where a similar issue is raised.)

[Martinned]

Wouldn’t the damages even have some time element to them? If I’ve sustained an injury that causes me a certain amount of discomfort, until such time as I get it fixed, the total value of the damage might plausibly be calculated by taking some day rate and multiplying by the number of days. (No idea whether NY state might do it that way, but still.)

[Drewski]

“Suppose the defendant demands that its doctor examine the person (which is typical in PI cases) before the surgery. Does the person have a duty to first let himself be examined and then get the surgery, assuming it is not an emergency surgery?”

That exactly describes the facts in this case, so I’m going to go out on a limb and say, “no.”

[Bored Lawyer]

Good point. The trial judge got the basis of sanctions wrong. She was under an order to appear for an examination on March 6. She had her surgery on April 2. The sanctions should be for failing to follow the judge’s order, not spoliation. Clearly, she was in no rush to get the surgery, and there is no reason she could not be examined first.

[ReaderY]

That was also my reading of the situation. The misconduct here, if any, was to simply ignore the ME, which was scheduled a month before she got the surgery, and not to request rescheduling it. If we treat the timing of the surgery as fixed based on her needs, she could have very easily made some attempt to find a time for the ME before then.

So I agree the trial judge’s emphasis on the surgery itself as the misconduct was a big mistake. As others have noted, among other considerations plaintiffs have an obligation to minimize their damages. And I would gererally agree that requiring people to remain injured and in pain for the convenience of a court in adjudicating a lawsuit is not reasonable and not good public policy or likely to keep the courts in good repute with the public.

[David Nieporent]

That’s right, although the thing you have to understand is that in NY state practice, deadlines, including discovery deadlines, even when court ordered, are basically treated like jokes. Obviously in theory ignoring even a single court order can be sanctionable, but in practice, you get about 12 “and this time I mean it”s.

[DaivdBehar]

Medical necessity trumps legal necessity. They still have prior studies and X-rays to rely on.

[jimc5499]

David,
From what I read, those were not allowed to be used.

“Supreme Court denied defendant’s motion to dismiss but sanctioned plaintiff by precluding her “from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery.”

[Rossami]

Despite the name, the “Supreme Court” in New York is the trial court. That decision was overturned by the appellate court. So that evidence is back in play.

[jimc5499]

I used the quote as it appeared. From what I read the lawsuit can continue, but there’s nothing stating that it is “back in play”. I could be wrong.

[MatthewSlyfield]

From the article as quoted from the appellate court decision:

And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one’s body, they should not be followed.

[Bored Lawyer]

Read the opinion. She was injured in June 2017 and had the surgery in April 2019. She had been ordered to appear for a medical exam in March 2019. No reason she could not have shown up and THEN had the surgery.

[jimc5499]

Several years ago I fell and ruptured my Quadriceps Tendon. The venue where I fell stepped up and assisted with my recovery and the expenses so there was no lawsuit. The Orthopedic who took care of me said that there was a tendency for the tendon to contract over time (a few days) so I needed surgery as soon as possible. If I read this right, I would have to wait on that surgery until the Defendant’s Lawyers were satisfied that I sustained the injury, even though it might complicate the surgery and hinder recovery by waiting.
I’ve herniated a disc. It didn’t require surgery but it was a painful injury. They are saying that she had to wait, in pain, so that they could dot the i’s and cross the t’s.
That’s one of the stupidest things that I’ve heard. Then her not being able to enter into evidence the documentation of the injury and the surgery, makes it worse.

[Joe_dallas]

various orthopedic injuries require immediate surgery (withing a few hours to a few days) Patella tendon tears being one as I recall

Other types such as acl, can be done weeks, months or even years later with little or no difference on surgical outcome.

[Brett Bellmore]

But still with prolonged suffering due to the delay.

[LawTalkingGuy]

Right. And the concept of “suffering” doesn’t just need to be constant agony or pain. Not getting a surgery while you wait for lawyers and doctors to sync their schedules could result in a delay in returning to work full-time depending on the injury and the profession. It might also delay your return to other activities.

[Milhouse]

If it’s truly time-critical then that would be an emergency. In this case the injury happened on June 25, 2017, and the surgery didn’t happen until April 2, 2019, so obviously it wasn’t an emergency, and could easily have waited a bit longer.

More importantly, it happened soon after the plaintiff no-showed for the exam on March 6, and before it could be rescheduled. Seen in the light most favorable to the defendant, the plaintiff knew the exam would find evidence against her claim, so she deliberately blew it off and then had the scene of the crime altered so the evidence could never be discovered. That’s classic spoliation.

[Bored Lawyer]

Yes, I missed that. She was under a court order to appear, and she blew it. The had a surgery one month later. That is gamesmanship that should be sanctioned.

[Milhouse]

Also the delay is not “so that they could dot the i’s and cross the t’s.” It’s so they can discover for themselves whether you’re lying and trying to swindle them. You’re free to do whatever your want with your body, but if you do this you shouldn’t be entitled to get any money from them. They should be allowed to argue that there was no injury to the altered site, or that it was as small as is consistent with whatever evidence remains, and the plaintiff should not be allowed to claim otherwise in the jury’s hearing.

[Martinned]

This strikes me as dubious, for pretty much the kind of self-determination reasons that are familiar from the abortion debate. The consequence of getting the surgery should be that you might have a tougher time proving your case, not that you otherwise get in trouble.

[Milhouse]

That was what the trial court ordered. As a penalty for having deliberately denied the defendant a chance to look at the supposed injury before it was corrected, she would not be allowed to introduce evidence about it. That seems fair to me.

The defendant is trying to prove that the injury either didn’t happen or wasn’t as bad as the plaintiff alleges. X-rays and such might not show something that a physical examination would reveal, which is why it’s entitled to an examination in the first place.

The appeals court’s note that the “independent” ME is not really independent seems to me like a red herring. Of course it isn’t independent. The point is that it’s the only chance the jury gets to see evidence that’s independent of the plaintiff. Everything else is supplied by the plaintiff, either directly or through discovery, and supposing there were physical evidence that contradicted the plaintiff’s story it could easily be quietly destroyed or hidden. The ME is the defendant’s only chance to take a look-see for itself.

[Brett Bellmore]

Doesn’t seem particularly fair to me, the surgery would have allowed much more direct evidence of the injury than a non-invasive examination would have.

[Milhouse]

Then the defendant should have been given the chance to have its own representative to observe the surgery.

[Brett Bellmore]

That much is certainly true, though they could have taken photos during the surgery, or done much better imaging just prior to conducting it.

Given the long time between the injury and the surgery, I’d suggest the plaintiff was just getting sick and tired of waiting on the lawyers before being treated.

[Rossami]

Given that the plaintiff apparently skipped multiple opportunities to be examined without explanation, I am less credulous of the implication that it’s purely the lawyers delaying her.

And no, when your potential argument is that the treating doctor is a quack treating a non-problem, letting that same doctor take a few pictures before or even during the surgery is not an adequately independent review.

[Flight-ER-Doc]

This. The patient is in pain (potentially lots of it) and the judge says that all the plaintiff has to do is prolong the process until they can stand it no more and ‘spoil’ the evidence…. Intractable pain is not an ’emergency’.

I hope the judge gets to experience pain like that.

[Martinned]

No, the trial court added a penalty on top, instead of simply looking at the evidence as it was available to be introduced. Denying a party the right to introduce evidence that does exist is a penalty.

[Joe_dallas]

Damage to the L4 or L5 from a falling ceiling tile[s] seem highly dubious.

c1 – c7 – possibly, but not the L4 or L5

[Joe_dallas]

In the remote possibility that there was actual damage, the bodies natural healing process would likely take only 3-4 months.

[Brett Bellmore]

Depends on the nature of the injury; Just a bulged disk or minor herniation, sure. If it was a ruptured disk, probably not.

[Joe_dallas]

Brett – my comment was really addressing the probability that there wasnt an actual injury.

[Brett Bellmore]

If there wasn’t evidence of an actual injury, isn’t the buried lede that the doctor who performed that surgery should be up for malpractice charges?

[Rossami]

Malpractice charges would have to be brought by the patient. The defendant (or more precisely, the defendant’s insurance company) could maybe bring fraud charges but not malpractice. Either way, they’d need the very evidence that the plaintiff denied them by skipping the scheduled opportunities for examination.

[MatthewSlyfield]

Spinal injuries and broken bones left untreated will heal on their own, but they may heal wrong/badly (for example healing in a way that leaves things misaligned) in a way that is potentially crippling and would requiring significant surgical intervention to correct later.

[Joe_dallas]

concur – they can naturally heal, but possibly heal incorrectly.

My point is that A) the likelihood of actual injury was remote – at least based on the vague description of the accident,
B) if there was an actual injury, it was most likely relatively mild and as such, the natural healing process without surgery would have been more than sufficient.

It may be my bias, but the description seems to have all the halmarks of a bogus claim.

[LawTalkingGuy]

Well that trial court opinion and all the underlying case law in that decision is just bonkers stuff. Absolutely peak lawyer brain. Good on the appellate division for stating the obvious. I mean if surgery is spoliation what about PT and OT? Taking Advil before the IME because your pain level reduced?

At least in my jurisdiction, continuing treatment by the plaintiff during the course of litigation is expected and normal. You get in accident…you sue…you might need physical therapy or injections or surgery.

Defense firms and insurers all know this and the name of the game is getting experts who can testify whether the treatment was actually necessary. That’s part of what the IME does.

If it gets to the point where litigation is dragging on too long because of treatment either 1) the plaintiff voluntarily dismisses and refiles a year later once the treatment picture is more clear or 2) everyone gets experts on whether future treatment is necessary, related to the injury, and what it would cost.

[Brett Bellmore]

Yes, and it seems to me this all was dragging on far too long for an injury that wasn’t resolving itself. OTOH, failing to show for the medical examination is not a good sign, and the ‘supreme court’ (NY!) might have taken that into account when assessing the situation.

But I’m having a hard time believing anybody sane would undergo back surgery just to destroy evidence.

[LawTalkingGuy]

Yeah. Failing to show isn’t great…but it isn’t some uncommon end of the world thing. And there are other remedies for that.

“But I’m having a hard time believing anybody sane would undergo back surgery just to destroy evidence.”

Correct. I mean unless it was somehow evidence that would put you in prison for life…no one would do this for a personal injury action. The surgery might ultimately not be necessary or wise or useful or related to the injury, but defense experts are perfectly capable of assessing that and testifying to the jury about those things.

[Rossami]

re: ” I’m having a hard time believing anybody sane would undergo back surgery just to destroy evidence”.

Then, to be blunt, you have managed to remain ignorant of the very extensive evidence of exactly that within the the back-pain industry. One of the more readable (and well-sourced) exposes is Crooked by C Ramin. Not all back-pain doctors and patients are unethical but there are plenty of examples who are. Skepticism, even in the face of surgery, is well justified.

[rsteinmetz]

That depends on the projected payoff and the willingness of the patient to be less that ethical, or perhaps the lawyer and the doctor were in cahoots.

I was once sued by a person who claimed that a toilet stall door fell on them and, among other things, caused multiple personality disorder. There is a lot of crazy out there.

[santamonica811]

Okay; I have to ask about this.
Where was the door when it allegedly fell on this person? Was it being carried to/from some location (ie, it’s irrelevant that this door was destined for a toilet)? Was it actually a toilet door, being used as a toilet door, and it (again, allegedly) suddenly fell off its hinges and fell on this person?

Sounds like the kind of case that lawyers tell other lawyers, when they’re sitting at a bar, swapping war stories.

[Allan L.]

Spoliosis?

[LawTalkingGuy]

Nice. Lol

[A nerdy Fred]

Dang, no Like button here.

[Rossami]

I disagree with the trial court’s implication that saying injured is an absolute requirement to avoid a spoliation charge but the timing suggests that this may not have been entirely innocent.

She was allegedly injured in June 2017. She doesn’t bother to get treated until April 2019 and only then after skipping three (or is it four) deadlines or appointments for an adversarial medical examination.

The trial court’s reasoning may have been wrong but the sanctions they imposed (exclusion of evidence involving injury to those vertebrae) seemed reasonable.

[Squirrelloid]

Plaintiff only missed one deadline. It appears defendant was dilatory in naming an ME to do the examination.

[rsteinmetz]

Or possibly the plaintiff resisted agreeing to an examination, requiring the court to order one.

[Reallynotbob]

Could have been. But it’s also notable defendant waited many months to designate a doctor and trigger the plaintiff’s 45-day obligation to submit to the ME. Was that also for strategic advantage? More time to heal and reduce the observed severity at the ME?
I agree with the appellate court. Deal with the missed ME appointment as a discovery violation, but don’t trigger spoliation “death penalty” sanctions.

[Stephen Lathrop]

Look out for retracted tendons. Those don’t just retract, they go away. It can make surgical repair impossible.

[Brett Bellmore]

Yeah, that definitely falls into the category of emergency treatment, no fooling.

[Rossami]

For a tendon to retract, it must first be severed. That requires treatment within days, maybe a few weeks at most. Since she didn’t seek treatment until almost two years after the accident, that cannot plausibly be relevant to the case here.

[Stephen Lathrop]

Rossami, can you say more. I think I follow what you did say, but do not understand why it affects anything. Maybe a lawyer would get it right away, but that is not me.

Consider a hypothetical. One of the two tendons on the upper end of the biceps is severed during a fall for which negligence is alleged as a cause. There is considerable pain, of course, but the victim is unaware that the tendon was severed, and unaware that there is a surgical emergency. The undamaged remaining tendon keeps the arm functioning somewhat. She tries to tough it out, and eventually the pain lessens, but after two years considerable disability remains, and plenty of residual pain, too. Keeping the hand below the shoulder works fairly well. Anything above the shoulder is almost impossible. Consulting a surgeon she discovers that because of the wait, she cannot be operated upon, and just has to live with it.

Can you explain how to apply your irrelevance principle to that case?

[Rossami]

Interesting hypothetical. Let’s apply it but overlay it on the timing of the case above.

Subject injures tendon A in June 2017 but does not immediately recognize the severity of the injury because tendon B compensates. Sometime in about July 2017 the condition becomes inoperable because, as you say, the tendon retracted and atrophies away. In your hypothetical, when does she actually consult with the surgeon and discover that she waited too long? And having waited too long (in this case, a year and a half too long), what suddenly triggered an urgent need for surgery before her already-scheduled examination?

If this case were about a severed tendon such as your hypothetical, the condition was inoperable before she even decided to sue (in May 2018) and long before the inexplicably skipped appointment and discovery actions in 2019. Had she sought emergency surgery in 2017, no reasonable person would accuse her of spoliation (notwithstanding the poorly worded and overturned decision of the trial court). What got her in trouble was that by 2019, it pretty obviously was no longer an emergency. Trying to call it an emergency but only after skipping a scheduled appointment makes it hard to call this good-faith participation in the discovery process.

[tkamenick]

My initial reaction was that the lower court judge was nuts, but upon learning that the plaintiff had skipped a court-ordered adverse examination and then a month later got this surgery… I completely flipped. Yes, this plaintiff needs to be sanctioned. Get the medical care you need, but not after denying the defendant YOU SUED their right to examine your injuries as they were.

[LawTalkingGuy]

Lower court is still nuts. Sanctions for missing a court ordered ime is one thing. Claiming that surgery is spoliation of evidence is absolutely nuts. Just makes no sense and can be used in all sorts of pernicious ways.

[MatthewSlyfield]

Except the appeals court said otherwise.

[MatthewSlyfield]

Read the full decision linked in the article. The appeals court voided the initial decision on the motion for spoliation sanctions and remanded with an explicit order that the lower court deny the motion for sanctions.

[Gasman]

“Going in for My Spoliation Surgery Tomorrow”
Did the professor just state he was undergoing surgery tomorrow?
If so, best wishes for success and a low pain recovery.

[santamonica811]

I’m pretty sure it was an attempt at humor…what the trial court thinks the plaintiff should have emailed to the defense’s attorneys. (I certainly hope so. I had this surgery on a few disks, and it was a pretty miserable recovery period. Would not wish serious back pain on my worst enemy.)

[Stephen Lathrop]

Another hypothetical for Rossami.

A patient has a long history of knee damage, beginning at age 20 with a horrible accident which nearly severed the knee (cartilage gone, all ligaments except one collateral ligament severed, the patellar tendon damaged but hanging on). Amazingly, there was some recovery without surgery (the patient was an athlete, the leg muscles were in peak condition, and their tendons were largely undamaged), and the patient managed 12 years of somewhat normal life before instability in the joint triggered another major injury, occasioning a surgical rebuild. Thereafter, the joint deteriorated. After years of limping around, the knee was long-since bone-on-bone, the leg shortened and bowlegged, the foot grotesquely turned outward. X-rays disclosed a wilderness of bone spurs. And the patient was fine with that. The leg was doing what it had to do, and the patient—traumatized by previous lengthy bouts of pain and recovery—refused medical advice to get a knee replacement. Refused a handicapped parking placard too.

Then came a final injury, a bad traffic accident for which the other driver was entirely at fault (drunk, late for work, running a red light), both cars totaled, and a fracture to the upper end of the tibia of the previously damaged knee.

Examination by an orthopedist resulted in a stark diagnosis: no treatment for you, unless you consent to total knee replacement. Anything else would be pointless, said the surgeon.

Leaving the resolution aside, and leaving aside the historical injuries prior to the car accident, are there any liabilities to be assigned to the other driver, or to the surgeon giving the advice? Or is it all just on the stubborn patient?

[Gasman]

Surgery is trauma. Controlled trauma, but trauma nonetheless.
It entails pain, suffering, loss of time from work, rehabilitation time, and a chance of death(even if one is fit and strong.).
And the surgeon’s prognosis of post surgical functioning is not an exact guarantee, but at best a guess at a range of outcomes, including worse than present state, a guess at the median likelihood, and best possible state.

It does make sense as a society to accept that the defendant has an obligation to make reasonable mitigation efforts, such as moving one’s car to higher ground if advised that the levy is going to break, but undergoing invasive, painful, sometimes risky, and always soul-crushingly invasive, surgery is too much as a demand. (n.b. my profession is mitigating the harms of surgery; anesthesia, pain management, perioperative care)

If your negligence damages someone, then you are in no position to demand that that person suffer further under the knife if that is not their wish.