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A Case of Surgical Malpractice

A Case of Surgical Malpractice

A discussion of a real case of surgical malpractice.

New York Surgical Malpractice

Generally speaking, doctors and their insurance carriers don’t like to admit that the doctor made a mistake and committed medical malpractice.  They will fight hard to ensure that a claim is dismissed and the injured party does not receive any compensation.  From being the medical advocate for the patient, the doctor now becomes the patient’s adversary.

Sometimes, this happens even when the doctor is aware that a mistake was made.  Sometimes, there is a good faith belief of the doctor that she did nothing wrong.  Whatever the case, the injured party faces not just a battle but a war in an attempt to obtain justice.

Take for example this medical malpractice case where the doctor failed to remove a retroperitoneal mass during an open biopsy, resulting in a delayed diagnosis and treatment of non-Hodgkin’s lymphoma.

A prior needle biopsy was suspicious for lymphoma. The primary doctor referred the patient to a surgeon for an open biopsy and removal of the retroperitoneal mass.

From being the medical advocate for the patient, the doctor now becomes the patient’s adversary.
According to the operative report, the surgeon performed an exploratory laparotomy, exploration of the retroperitoneum and excision of the retroperitoneal tumor.  After the surgery, the patient returned to both doctors with the same complaints and symptoms of left leg swelling.  The primary doctor referred the patient to a vascular surgeon.  There was no concern that the patient may still be suffering from cancer.  Soon after, the patient went on his own to another doctor and was immediately referred to an oncologist.  The oncologist diagnosed the patient with advanced lymphoma.  The patient was afforded appropriate treatment with relief of symptoms and remittance of the cancer.

A lawsuit was started against both doctors alleging that the surgeon failed to remove the tumor mass during the open biopsy, and that the primary doctor failed to refer the patient to an oncologist despite the awareness of the impression of lymphoma and the patient’s continuing symptomatology subsequent to the open biopsy.

After all discovery was had in the case, both doctors moved for summary judgment to dismiss the case.  Despite presenting significant evidence that the surgeon failed to remove the mass during the open biopsy, the Supreme Court dismissed the complaint against both doctors.

The basis of the argument was that the lower Court was wrong in holding that there was insufficient evidence to establish that there was cancer at the time of the subject surgery since the pathology result found only lipoma.
The material allegation in the case was that the surgeon failed to remove the retroperitoneal mass during the open biopsy.  If, as plaintiff alleged, the surgeon excised only the overlying fatty tissue surrounding the tumor, then pathology would not have the actual tumor mass to sample.  As such, the pathology result of lipoma, although not incorrect, would have been based on the inappropriate sample resulting in a false impression.

It was the surgeon’s contention that the mass was removed during the surgery and since the pathology result was lipoma, there was no cancer in plaintiff’s body at the time of the surgery.

The patient in opposition to the motion submitted sufficient expert medical opinion that established that the tumor, which is more coarse and gritty in consistency than fat, was not excised, and that only overlying fat was excised and sampled, which explained the pathology finding of lipoma.

This should have been sufficient to raise a question of fact to deny the motion against the surgeon.  (The case against the primary doctor is not being discussed and was properly dismissed by the Supreme Court).  Nevertheless, the Supreme Court granted the surgeons motion and dismissed the case.

An appeal was made to the Second Department.  There the patient argued that the lower Court erred in granting the motion.  The basis of the argument was that the lower Court was wrong in holding that there was insufficient evidence to establish that there was cancer at the time of the subject surgery since the pathology result found only lipoma.  In effect, the lower Court insulated the surgeon from his mistake because of his mistake.  If the surgeon never removed the cancerous mass how could a pathology report be positive for cancer?  The Appellate Court reversed and reinstated the patient’s case.

This was a hard fought war, but justice prevailed and the patient received the compensation deserved.

Click Here to Read the Court's Decision

Personal Injury Lawyer

If you or a loved-one experienced a possible case of surgical malpractice, it is important to contact a New York medical malpractice lawyer as soon as possible to protect your interests.

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