Trial Partner Aryeh S. Klonsky, Appellate Partner Gregory A. Cascino and Associate Edmund T. Rakowski successfully moved for summary judgment in a case involving an alleged failure to diagnose liver cancer in a then 37-year-old male paramedic. We represented an internist and his practice and a gastroenterologist and his practice. The plaintiff presented to a non-party Hospital with complaints of abdominal pain on February 13, 2014, where he was admitted and evaluated. Ultrasound at the hospital identified a small mass (1.8x 2.2 x 2cm) on the plaintiff's liver believed to be a hemangioma (benign lesion) and the radiologist recommended follow-up with short-term sonogram 4-6 months to insure lack of interval change, or dynamic MRI to ensure that the finding was a hemangioma.
On February 25, 2014, the plaintiff presented to our gastroenterology client for evaluation for suspected pancreatitis and he ordered endoscopy, later performed on March 4, 2014. The endoscopy was normal, and the patient's pancreatitis/GI symptoms reportedly improved with medication. Our client reportedly advised the plaintiff to return to his office in six months for further evaluation. The plaintiff denied that our client ever advised him to return. The plaintiff instead recalled that our client reassured him that he was too young to have cancer, and he did not need to return.
According to the plaintiff, his gastroenterology symptoms remained transient in 2014, 2015, 2016, and 2017, but he did not return to our client believing that our client gave him assurances that he did not have cancer. The patient's symptoms continued and he presented to the an Emergency Department of a non-party hospital on August 5, 2018. An abdominal CT identified an 8.5 x 7.2cm liver lesion and he was advised to see a liver specialist. The plaintiff returned to our client on August 13, 2018. Our client then ordered MRI to further evaluate the larger liver lesion.
On September 8, 2018, MRI with contrast revealed an 8.5cm liver tumor favoring hepatocellular carcinoma fibrolamellar subtype (liver cancer). The patient ultimately required liver resection to remove the liver tumor.
At the close of discovery, we successfully obtained voluntary discontinuances on behalf of our internal medicine client and his practice. Plaintiff continued the action against the gastroenterologist and his practice.
Plaintiff alleged that the gastroenterology defendant failed to timely diagnose liver cancer in 2014,failed to follow the radiologist's recommendation to order additional imaging, failed to advise the plaintiff of the need for further imaging to rule out cancer, and failed to follow-up with the plaintiff to ensure that the patient returned for further evaluation. The plaintiff alleged that these departures proximately caused a 4+ year delay in diagnosis of the cancer, resulting in advanced stage disease, worsened prognosis, reduced life expectancy, and significant pain and suffering.
The plaintiff alleged that the action was timely because defendants continuously treated the plaintiff from 2014 through 2018, and argued that the action was timely pursuant to the amendment to CPLR 214-a, known as "Lavern's Law." Under Lavern's law, the statute of limitations for cases involving an alleged failure to diagnose cancer starts to run from the date of diagnosis (2018), rather than the date of alleged malpractice (2014).
We moved for summary judgment supported by an affirmation of an expert gastroenterologist who opined that the defendant appropriately treated the plaintiff and that none of the plaintiff's injuries were proximately caused by any malpractice. We also argued that the plaintiff's claims of malpractice were untimely and that any available tolls to the statute of limitations should not apply. Specifically, we argued that that defendants were not continuously treating the plaintiff, and that Lavern's Law does not apply. Plaintiff opposed the motion supported by an affidavit of an expert oncologist and an affidavit of an expert gastroenterologist. Both experts opined that our clients departed from good and accepted medical practice causing the cancer to grow to an advanced stage. The experts opined that defendants were continuously treating the plaintiff from 2014-2018, and never discharged the plaintiff from his practice.
On November 28, 2023, the Court granted defendants' motion on both grounds, holding that defendants did not deviate from the standard of care, and that plaintiff's lawsuit was untimely, as defendants were not continuously treating the plaintiff from 2014-2018 and Lavern’s Law did not apply. The Court also agreed with the defense position that plaintiff's two experts' opinions were conclusory and unsupported by the facts of the case. The matter was dismissed in its entirety avoiding the costs and risks of proceeding to trial.