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Nabozny v. Cappelletti (N.Y.App.Div. 12/09/1999)
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Supreme Court12/9/1999
phy and reduced the possibility of a positive outcome following treatment for reflex sympathetic dystrophy.
None of Fribush's opinions - which are all based on defendant's conduct and perceived omissions occurring between March 5, 1987 and April 8, 1987 - could be legitimately affected by the results of a venogram ordered by another physician two weeks after defendant stopped treating plaintiff. Said differently, while evidence tending to prove or disprove the presence of a deep vein thrombophlebitis may have been important to each side, it was not dispositive of the issue of the failure to perform any diagnostic tests or reconsider treatment during the March 5, 1987 to April 8, 1987 period (i.e., the April 23, 1987 venogram itself does not change the fact that defendant did not order any diagnostic tests of his own or diagnose plaintiff's reflex sympathetic dystrophy).
Moreover, plaintiff's ability to argue that she never had a deep vein thrombophlebitis was not dependent on the existence - or nonexistence - of the film itself. Leather testified that he conducted a duplex study on plaintiff and that the results were normal. According to Leather, although a venogram was an accepted standard for diagnosing deep vein thrombophlebitis in 1987, a duplex study was the best diagnostic tool for determining this condition. Thus, the results of the April 23, 1987 venogram notwithstanding, Leather opined that plaintiff never had a deep vein thrombophlebitis. On rebuttal, John Phelan, a general and vascular surgeon, testified that he examined the venogram film following its discovery during trial. According to Phelan, it did not confirm the diagnosis of a deep vein thrombophlebitis. Thus, plaintiff's position that she never suffered from a deep vein thrombophlebitis was the same both before and after the discovery of the film. For all these reasons, we conclude that Supreme Court did not abuse its ample discretion in refusing to strike defendant's answer, nor have plaintiffs demonstrated prejudice so great as to warrant a new trial in the interest of justice.
As a final matter, while defendant, and his experts, acknowledge that plaintiff sustained peroneal nerve palsy as a result of prolonged bed rest, he clearly disputed that this injury was a consequence of improper medical care or treatment on his part. In contrast, Fribush testified that defendant's alleged departures of care caused plaintiff to develop peroneal nerve atrophy. Notably, the jury determined that defendant was not negligent in his care and treatment of plaintiff. This being the case, there was certainly a basis upon which the jury could also determine that plaintiff's peroneal nerve palsy was not attributable to any deviation from accepted standards of medical care on defendant's part (see, e.g., Calandrillo v. East Nassau Med. Group, 186 AD2d 703). Indeed, "a bad result does not, ipso facto, support a claim for medical malpractice" (Schoch v. Dougherty, 122 AD2d 467, 468, lv denied 69 NY2d 605).
Plaintiffs' remaining contentions have been reviewed and rejected as without merit.
Crew III, J.P., Spain, Graffeo and Mugglin, JJ., concur.
ORDERED that the judgment and order are affirmed, without costs.
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