Nabozny v. Cappelletti

• Decision Date: 09 December 1999
• Citation: 267 A.D.2d 623,699 N.Y.S.2d 589
• Parties: SHERI A. NABOZNY et al., Appellants,<BR>v.<BR>RICHARD CAPPELLETTI, Respondent.
• Court: New York Supreme Court — Appellate Division

267 A.D.2d 623

699 N.Y.S.2d 589

SHERI A. NABOZNY et al., Appellants,

v.RICHARD CAPPELLETTI, Respondent.

Carpinello, J.

Decided December 9, 1999.

Crew III, J. P., Spain, Graffeo and Mugglin, JJ., concur.

Carpinello, J.

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^[1] 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 plaintiff's. 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 plaintiffs' counsel, who rested before the court at midday. That afternoon, defense counsel issued a subpoena for the film, obtained it and ultimately introduced it into evidence during defendant's case over plaintiffs' objection.

Plaintiffs claim that defendant's failure to disclose the April 23, 1987 venogram film warrants the striking of his answer pursuant to CPLR 3126 (3) or, alternatively, a new trial in the interest of justice. A court may strike the "pleadings or parts thereof" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). The nature and degree of any penalty imposed on a motion pursuant to CPLR 3126 is a discretionary matter (see, e.g., Soto v City of Long Beach, 197 AD2d 615, 616; Spira v Antoine, 191 AD2d 219), and "striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" (Harris v City of New York, 211 AD2d 663, 664; see, Forman v Jamesway Corp., 175 AD2d 514). Our review of the record, particularly the thorough proceedings conducted by Supreme Court outside the presence of the jury during which all of the circumstances surrounding the belated production of the venogram were fully explored, leads to the conclusion that the court did not improvidently exercise its discretion in declining to strike defendant's answer.

First, and foremost, plaintiffs did not meet their burden of coming forward with a "clear-cut showing" (Forman v Jamesway Corp., supra, at 515) that defendant willfully or contumaciously failed to disclose the subject venogram to them during pretrial discovery (cf., Lawrence H. Morse, Inc. v Anson, 251 AD2d 722; Pimental v City of New York, 246 AD2d 467, 468). While plaintiffs' counsel did specifically request medical records, including X-ray films, from Columbia-Greene on two occasions during this protracted litigation (in July 1988 and April 1989), the hospital failed to provide copies of the April 23, 1987 venogram. When plaintiffs' counsel made a specific request for six unrelated X-ray films in October 1997 (the April 23, 1987 venogram not being one of the requested films), he was informed by Columbia-Greene that all 1987 and 1988 X rays had been discarded. In addition, notwithstanding an agreement that defense counsel would forward all reports and documents obtained through use of plaintiff's medical authorization, defense counsel never forwarded copies of the venogram to plaintiffs' counsel during the time periods when copies were in their possession and subsequently lost. In sum, all counsel proceeded to trial believing that the original venogram film had been discarded, neither side then having a copy in their possession.

Although plaintiffs attempt to make much of the fact that defendant served as Columbia-Greene's medical director from 1994 to 1998, they have not demonstrated that, in this capacity, he was in any way responsible for the hospital's failure to produce the venogram or the misinformation that all 1987 X-rays were destroyed (indeed, defendant did not even hold this position when the only two requests regarding the subject venogram were actually made by plaintiffs). There was simply no showing that, during pretrial discovery, "defendant was guilty of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation" (Forman v Jamesway Corp., supra, at 515). To the contrary, the record reveals that the subject venogram, along with other medical records generated in the radiology department, were transferred by the hospital to its risk management department in 1990—due to plaintiffs' lawsuit against Columbia-Greene—and remained there until 1996 when they were sent back to radiology. At this point, they were then sent to a warehouse facility where they were stored until defendant's May 5, 1998 inquiry to the radiology department revealed their existence.

Nor do we find that willfulness "can be inferred from the...