You are here: / / THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID...
, ,

THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID NOT HAVE POSSESSION OF THE VENOGRAM USED TO DIAGNOSE A BLOCKAGE IN A VEIN IN DEFENDANT’S LEG; PLAINTIFF’S APPLICATION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should not have been granted, and the application for sanctions for spoliation of evidence should not have been denied. The doctors claimed to no longer have possession of a venogram used to diagnose the blockage of a vein:

… [T]he plaintiff sufficiently established that the defendant doctors lost or destroyed the venogram imaging. The record demonstrates that it was the defendant doctors’ regular practice to record the results of venograms, that the defendant doctors had recorded the plaintiff’s other tests, and that the defendant doctors offered no explanation for the absence of the venogram imaging … . Moreover, the plaintiff established that the venogram imaging was relevant and necessary to the prosecution of the action. Contrary to the defendant doctors’ contention, the handwritten notation on the plaintiff’s treatment notes indicating the results of the venogram was not an adequate substitute. Accordingly, the Supreme Court should have granted the plaintiff’s application to impose sanctions on the defendant doctors to the extent of directing an adverse inference charge against those defendants at trial with regard to the missing evidence … . Loccisano v Ascher, 2021 NY Slip Op 03451, Second Dept 6-2-21

 

You might also like
PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.
GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD BE HELD IN DISPOSITIONAL PORTION OF PROCEEDINGS TO TERMINATE MOTHER’S PARENTAL RIGHTS.
WHERE THERE IS CONFLICTING EXPERT OPINION EVIDENCE IN A MEDICAL MALPRACTICE ACTION, SUMMARY JUDGMENT IS NOT APPROPRIATE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE ADDITIONAL NOTICE REQUIREMENT IN CPLR 3215(G)(4) DOES NOT APPLY TO SERVICE UPON A LIMITED LIABILITY COMPANY, AS OPPOSED TO A CORPORATION (SECOND DEPT).
DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF WAS ADMITTED WITH COVID, WAS TREATED FOR COVID AND DIED FROM COVID; PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) THE DEFENDANT WAS IMMUNE FROM SUIT (SECOND DEPT).
BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
PLAINTIFF, A PASSENGER ON A MOTORCYCLE, WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE VAN DRIVER AND THE EMPLOYER OF THE VAN DRIVER WHO MADE A LEFT TURN INTO THE MOTORCYCLE’S PATH, THE GRAVES AMENDMENT MAY APPLY TO THE LESSOR OF THE VAN, PLAINTIFF DID NOT HAVE TO DEMONSTRATE SERIOUS INJURY AS SHE WAS NOT A COVERED PERSON UNDER THE NO-FAULT INSURANCE LAW (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE... PLAINTIFF’S LETTER TO THE COURT REQUESTING SANCTIONS WAS NOT SUFFICIENT...