Gibides v. Powell

Wisner and Fallon, JJ.

(dissenting). We respectfully dissent. Defendant Douglas N. Powell, M.D. is an obstetrician who saw plaintiff’s decedent for a routine visit during the course of her *1093pregnancy. There is no proof that decedent was experiencing symptoms of heart disease when she saw him or that she made such complaints to him. Although there is proof that two weeks earlier decedent made such complaints to a co-worker, decedent told treating physicians when she had her heart attack that the symptoms began only two days earlier.

In an affidavit in support of his motion, Dr. Powell stated that the only complaint of decedent was discomfort in her wrists, which decedent attributed to carpal tunnel syndrome. In opposition, plaintiff presented no proof in admissible form rebutting that statement. Although Dr. Powell did not record decedent’s complaints in the medical record, the absence of a record does not prove that a history was not taken (see, Krapivka v Maimonides Med. Ctr., 119 AD2d 801, 802-803). Plaintiff’s expert avers that it is a departure from accepted medical practice to make a diagnosis of carpal tunnel syndrome without recording decedent’s complaint. Plaintiff, however, has not shown that anyone relied upon Dr. Powell’s records to decedent’s detriment (see, De Stefano v Immerman, 188 AD2d 448; Amsler v Verrilli, 119 AD2d 786). (Appeal from Order of Supreme Court, Onondaga County, Tormey, III, J. — Summary Judgment.) Present — Denman, P. J., Wisner, Pigott, Jr., Callahan and Fallon, JJ.