MCB Wins Summary Judgment Motion in High Exposure Cervical Cancer Case

by | Feb 18, 2021 | Case Results, Medical Malpractice | 0 comments

Senior Partner, Michael A. Sonkin, Partner Samantha E. Shaw, and Senior Associate Kathryn D. Blackmer obtained a successful dismissal of a high exposure cervical cancer case on summary judgment.  The case, venued in New York County, involved a patient who underwent a radical hysterectomy following a diagnosis of cervical cancer.  Upon pathological review, it was determined that the tumorous cancer has been removed, the margins were clear, and there was no lymphovascular involvement.  Ultimately, adjuvant therapy was not recommended or received.  Approximately one year later, the patient was diagnosed with a recurrence by her obstetrician/gynecologist plaintiff-husband.  Thereafter, she underwent long courses of chemotherapy, radiation and surgical interventions.  The patient expired four years later following a difficult course.   The main claims against the physician defendants and hospital included a failure to excise the entire cancerous tumor due to improper placement of clamps, failure to confirm an adequate amount of tissue was submitted to pathology, failure to properly interpret the pathology and failure to recommend adjuvant therapy.

The physician plaintiff-husband continued to pursue this case following his wife’s death but his counsel withdrew.  The case was dismissed without prejudice when plaintiff could not obtain new counsel. On the eve of the one year mark of dismissal, a motion to restore accompanied by an Affidavit of Merit from an obstetrician/gynecologist was filed.  The motion to restore was granted and the plaintiff-husband thereafter pursued the case pro se.

Following completion of discovery, the plaintiff voluntarily discontinued the pathology defendant physician but continued to assert the pathological claims against the hospital.  We moved for summary judgment on behalf of the hospital and the gynecologic oncologist who performed the subject procedure.  We argued that the procedure was properly performed, that the entire cancerous tumor was removed as evidenced by the clear margins, and that adjuvant therapy was not warranted.  In opposition, plaintiff annexed the same Affidavit of Merit used in the motion to restore the case three years earlier before discovery and depositions were completed.  The physician plaintiff-husband further made vague attempts to put forth himself as an expert  and annexed medical literature to support his theories.  In reply, we argued that the expert providing the Affidavit of Merit was unqualified to render opinions in pathology and gynecologic oncology but also did not review the subsequent discovery and depositions that were obtained after the Affidavit was created.  We further argued that the physician plaintiff was not qualified to opine in the fields of pathology and gynecological oncology either and that plaintiff failed to lay a foundation as to the reliability of the medical literature annexed as exhibits.

Following oral argument, the Judge issued a favorable defense decision holding that defendants met its prima facie burden demonstrating entitlement to summary judgment and that plaintiff failed to put forth expert opinions to combat the opinions of the defendants’ experts.