A Case of Surgical Malpractice
A discussion of a real case of surgical malpractice.
New York Surgical Malpractice
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.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, which granted the separate motions of the defendant doctor for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Doctor 1 and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs payable to the defendant Doctor 2 by the defendant Doctor 1, and the complaint is reinstated insofar as asserted against the defendant Doctor 1.
The plaintiff went to the defendant Doctor 2, an internist, with a complaint of swelling in his lower extremities. After ruling out deep vein thrombosis, Doctor 2 ordered, inter alia, a pelvic CT scan that indicated the presence of a retroperitoneal mass. Doctor 2 admitted plaintiff to the hospital for a CT-guided needle biopsy to determine the nature of the mass. The pathologist reported that the needle biopsy showed atypical cells, but was inconclusive, and recommended an open biopsy. Doctor 2 referred plaintiff to the defendant Doctor 1, a surgeon, who performed an exploratory laparotomy and excision of the mass to obtain a definitive diagnosis. The resultant diagnosis was a retroperitoneal lipoma, a benign condition. After the surgery, plaintiff had a recurrence of the swelling in his left leg. Doctor 2, who suspected a venous insufficiency, prescribed an elastic stocking and recommended that plaintiff consult with a vascular surgeon.
Plaintiff sought a second opinion from nonparty physician Doctor 3, who referred plaintiff to nonparty physician Doctor 4. The diagnostic tests authorized by Doctor 3 and Doctor 4 revealed a mass in the retroperitoneum and gluteal region. Approximately eight months after the laparotomy performed by Doctor 1 resulted in the noncancerous diagnosis, a second CT guided needle biopsy revealed a malignant lymphoma. Plaintiff underwent a successful regimen of chemotherapy and radiation therapy which shrank the tumor, and subsequent diagnostic testing revealed negative findings for any spread of the cancer.
“In a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat a defendant physician’s entitlement to summary judgment (see Alvarez v. Prospect Hosp., supra at 325). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Prete v. Rafla Demetrious, 224 A.D.2d 674, 675).
The expert affidavit submitted by Doctor 2 in support of his motion for summary judgment established a prima facie case that his treatment of plaintiff was not negligent. Doctor 2 did not assume a general duty of care with regard to the care and treatment provided plaintiff by Doctor 1 and the pathologist in diagnosing the nature of the mass (see Yasin v. Manhattan Eye, Ear & Throat Hosp., 254 A.D.2d 281, 282; Donnelly v. Finkel, 226 A.D.2d 671, 672). In his affirmation in opposition to Doctor 2’s motion, the plaintiffs’ expert failed to show how the care and treatment rendered by Doctor 2 either before or after the surgery performed by Doctor 1 proximately caused plaintiff’s alleged injuries (see Yasin v. Manhattan Eye, Ear & Throat Hosp., supra at 283; Bartha v. Lombardo & Assocs., 212 A.D.2d 494).
As to the defendant Doctor 1, the expert affidavit submitted by him in support of his separate motion for summary judgment established a prima facie case that his treatment of plaintiff was not negligent. Nevertheless, his motion was improperly granted as the affirmation of the plaintiffs’ undisclosed expert was sufficient to raise the existence of triable factual issues (cf. Alvarez v. Prospect Hosp., supra at 327; Fileccia v. Massapequa Gen. Hosp., 63 N.Y.2d 639, affg 99 A.D.2d 796). The undisclosed expert recited specific facts in the medical record upon which the expert’s opinion was based (cf. Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 359) and opined that Doctor 1’s deviations from good and accepted medical practice proximately caused plaintiff’s injuries by delaying the diagnosis of lymphoma.
Accordingly, the Supreme Court improperly granted summary judgment to Doctor 1.
N.Y.A.D. 2 Dept.
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.