Summary Judgment Granted in Failure to Diagnose Bladder Cancer Case

Summary Judgment Granted in Failure to Diagnose Bladder Cancer Case

Managing and Appellate Partner, Michael N. Romano, secured summary judgment on behalf of MCB’s clients, a hospital, a medical oncologist and two pathologists, in an alleged failure to diagnose bladder cancer case.

The claim in this case was that MCB’s clients, and several co-defendants, collectively failed to timely diagnose bladder cancer and allowed bladder cancer to reoccur twice, resulting in metastasis and death, with the claims going back to 2015 and continuing through 2017.

The decedent was directly admitted to the hospital by the co-defendant urologic surgeon in 2015 for a diagnosis of non-invasive papillary carcinoma of the bladder. The co-defendant performed an open right partial cystectomy, assisted by another co-defendant, who was the decedent’s private urologist. This surgery entailed removal of the entire diverticulum which housed the bladder tumor.  It was successfully argued the hospital was not vicariously responsible for any of the treatment during this 2015 admission since the patient’s private physicians directly admitted decedent to the hospital and oversaw his care.  It was further argued any treatment occurring in 2015 was time-barred by the statute of limitations since neither Lavern’s Law nor the continuous treatment doctrine applied to toll the statute.

In January of 2017 the decedent’s bladder cancer reoccurred and the co-defendants again admitted him to the hospital for treatment, where he was seen by MCB’s client, a hospital-employed medical oncologist. The claim against the medical oncologist centered around a sole consultation she performed at the request of the decedent’s urologic surgeon for evaluation for possible neoadjuvant and adjuvant chemotherapy prior to cystectomy due to a recurrence of the decedent’s bladder cancer. It was determined by our client since the bladder tumor did not invade or extend to the muscle of the bladder (muscularis propria), but was limited to the lamina propria, which is a layer of connective tissue that forms part of the mucous membrane which lines the bladder, neoadjuvant and adjuvant chemotherapy was not indicated.  In support of summary judgment the affirmation of an expert in medical oncology was submitted who opined that it is the standard of care not to perform neoadjuvant or adjuvant chemotherapy in bladder cancer patients were the tumor does not invade the muscularis propria and it was, thus, appropriate for MCB’s client not to recommend neoadjuvant or adjuvant chemotherapy.

The focus of plaintiff’s claim against MCB’s client pathologists was the interpretation of specimens from the co-defendants’ restaging transurethral resection of the bladder tumor to determine if there was muscular invasion of the tumor so the clinicians treating the decedent could determine whether decedent met the criteria for treatment of his bladder cancer with neoadjuvant and/or adjuvant chemotherapy.  It was also alleged the pathologists misinterpreted intraoperative frozen section specimens taken from the decedent’s ureters and posterior peritoneum. Our expert pathologist supported the interpretations of our clients, which were confirmed to be correct by the pathology department of Memorial Sloan Kettering Cancer Center.

Plaintiff’s counsel was unable to effectively counter the forgoing arguments, resulting in the complete dismissal of the case.