Earlier this month a NY appellate court covering Brooklyn appeals restored a medical malpractice suit that had been dismissed and sanctioned the defendant vascular surgeon. The plaintiff sought treatment from a vascular surgeon with complaints of pain and swelling in his left leg. The vascular surgeon performed a venogram which revealed stenosis in the common iliac vein and implanted a stent to open the narrowing. After the procedure, the plaintiff was then diagnosed with a deep vein thrombosis (clot) in the leg and was administered blood thinners, anticoagulants and tissue plasminogen activator (tPA), which is a thrombolytic agent used as a clot buster. One or more of these medications led to a brain hemorrhage leaving the plaintiff paralyzed on the left side of his body.

During discovery the vascular surgeon was required to provide plaintiff's counsel with the fluoroscopic/ultrasound images from the venogram and failed to do so without any explanation. The vascular surgeon then filed a pre-trial motion to dismiss the plaintiff's case which was granted by the trial court despite the vital missing imaging studies. On appeal plaintiff's counsel claimed the imaging studies from the venogram were relevant and necessary to proving their claims that it was a departure from accepted standards to: 1) implant the stent as plaintiff's condition was not sufficiently severe to outweigh the risks; 2) administer tPA  to plaintiff without first performing a neurological exam. In reversing the trial court, the appeals court held that plaintiff should be allowed to prove his case to a jury at trial.
The appeals court also ordered that the vascular surgeon be sanctioned with an adverse inference instruction to the jury at the time of trial. Essentially this means that just before the jury begins to deliberate on the case (after all witnesses have testified) the trial Judge must tell the jury that the vascular surgeon was required to preserve the missing venogram images, that they may infer that the images would not have supported the surgeon's position and would not have contradicted plaintiff's evidence. The court explained that this adverse inference sanction applies whether the missing images were intentionally destroyed or negligently lost. Loccisano v Ascher, 2021 N.Y. Slip Op. 03451