Vascular Surgeon Sanctioned For Losing or Destroying Venogram Images - Paralyzed Malpractice Victim’s Case Restored

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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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