Missing Document Charge Appropriate Sanction For Operative Report That May Never Have Been Created

In Krin v. Lenox Hill Hospital, the trial court granted a missing document charge in response to the plaintiff’s motion to strike on grounds of spoliation, and the First Department affirmed. In this medical malpractice action, the plaintiff complained that the defendants had failed to turn over a cosmetic operative report. The report at issue was allegedly dictated at some point, but it was not part of the file when records were disclosed. Considering the circumstances below and the conflict in the record as to whether such a document even existed, the First Department noted that a missing document charge was an appropriate sanction rather than striking defendant's answer.