BILL NUMBER: S5774
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 one of the bill adds a new paragraph (b) to § 3126 of the civil
practice law and rules stating that any party, or person who is an offi-
cer, 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 informa-
tion 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 plaintiffs
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 two of the bill adds a new subdivision (j) to § 3101 of the
civil practice law and rules stating that 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 treat-
ment is the subject of the action.
Section three of the bill sets the effective date.
 
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:
2023-24: S152 (Gianaris) died in Judiciary
2021-22: S163-B (Gianaris) died in Judiciary
2019-20: S293 (Gianaris) died in Judiciary
2017-18: S3132 (Gianaris) died in Judiciary
2015-16: S2474 (Gianaris) died in Judiciary
2013-14: S600 (Gianaris) died in Judiciary
2012: S2531 (Gianaris) died in Judiciary / A4868 (Simotas) died in codes
2011: S2531 (Gianaris) died in Judiciary / A4868 (Simotas) died in rules
2010: S6131 (Schneiderman) died in Codes / A5239 (Gianaris) died in
codes
2009: S6131 (Schneiderman) died in Rules / A5239 (Gianaris) died in
codes
2008: A4540 (Gianaris) advanced to third reading
2007: A4540 (Gianaris) advanced to third reading
2006: S4045 (Balboni) died in Codes / A4202 (Gianaris) advanced to third
reading
2005: S4045 (Balboni) died in Codes / A4202 (Gianaris) advanced to third
reading
2004: A3547-B (Gianaris) advanced to third reading
2003: A3547-A (Gianaris) advanced to third reading
 
FISCAL IMPLICATIONS:
None.
 
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.

Statutes affected:
S5774: 3126 civil practice law, 3101 civil practice law