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Supreme Court12/9/1999
Calendar Date: October 5, 1999
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the Supreme Court (Cobb, J.), entered May 19, 1998 in Columbia County, upon a verdict rendered in favor of defendant, and (2) from an order of said court, entered January 14, 1999 in Columbia County, which, inter alia, denied plaintiffs' motion to strike defendant's answer or, in the alternative, for a new trial.
On January 13, 1987, plaintiff Sheri A. Nabozny (hereinafter plaintiff) injured her left ankle after a fall at work. She treated with defendant, a vascular surgeon, on January 30, 1987 for a sprain and saw him again on three occasions in February 1987 (twice in his office and once at the emergency room) for the injury . On March 1, 1987 and March 5, 1987, respectively, she went to the emergency room with continued complaints of pain. During the March 1, 1987 emergency room visit, plaintiff was seen by another physician who diagnosed her with a soft tissue injury. On the March 5, 1987 visit, defendant examined plaintiff and found that her left foot had increased swelling and was tender to the touch, that her toes were black and blue and that she had a markedly positive Homan's sign (i.e., she had tenderness and pain on dorsiflex).
Defendant diagnosed her with a deep vein thrombophlebitis of the left foot - i.e, a blood clot in the vein which, if untreated, could result in a pulmonary embolism and death - and admitted her to Columbia-Greene Medical Center. Although plaintiff remained in the hospital until April 14, 1987, her care was transferred to Markandu Thambirajah, a family practitioner, as of April 8, 1987. During the period of time that defendant treated plaintiff in the hospital, he prescribed bed rest and intermittent heparin therapy to stop the clotting process. It is undisputed that plaintiff did not respond to the heparin and continued to be in significant pain while under defendant's care. She was eventually diagnosed with reflex sympathetic dystrophy and peroneal nerve palsy secondary to prolonged bed rest and compression of the left fibular head.
The instant medical malpractice action commenced by plaintiff and her husband, derivatively, concerns defendant's treatment from March 5, 1987 to April 8, 1987. They claim that defendant failed to order diagnostic tests to confirm his diagnosis of deep vein thrombophlebitis and failed to timely recognize and treat plaintiff's reflex sympathetic dystrophy, which caused plaintiff to develop peroneal nerve atrophy and reduced her chance of a complete recovery. A jury found in favor of defendant, prompting this appeal.
The primary controversy on appeal involves a venogram X ray performed on plaintiff as ordered by another physician on April 23, 1987 and the circumstances surrounding its ultimate disclosure to plaintiffs. At certain points in the litigation, defense counsel had obtained copies of the venogram, but lost them. As of the commencement of trial in Supreme Court, neither party had a copy of the actual film itself in their possession, both sides being under the impression that Columbia-Greene had by that time destroyed the decade-old X ray. Both sides, however, had a copy of the venogram report, which noted that there was an "incomplete visualization of the deep veins in the patient's left calf" but nonetheless concluded that plaintiff had a deep vein thrombophlebitis in the left calf region. On the morning of the last day of plaintiff's case, defendant personally phoned the radiology department of Columbia-Greene and discovered that the venogram film did in fact still exist. Unfortunately, the existence of the venogram film was not immediately disclosed to plaintiff
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