Senior Partner Jeffrey A. Shor recently tried a case to a defense verdict. The case involved a 51-year-old married father of two, who presented to defendant dermatologist because of a suspicious mole on his back. The dermatologist promptly made a diagnosis of melanoma and referred the patient to the co-defendant oncological surgeon, who ordered a pre-operative PET/CT scan to ascertain that there was no metastasis of the cancer prior to his operative procedure wherein he performed a wide and deep excision of the lesion. The results of the radiology revealed a 5 millimeter subpleural nodule which was not believed to be of any significance but the radiologist who interpreted the scan indicated that a follow up CT scan should be performed in the future. The patient only returned to the surgeon twice to have his sutures removed and did not follow the surgeon’s advice to see him on a regular basis. Accordingly, the surgeon was not afforded the opportunity to order the follow up CT scan. The dermatologist was aware of the outstanding CT scan and continued to see the patient approximately twelve times over the next two years for skin examinations.
The dermatologist never ordered the follow up CT scan as the interpretation of such a test was beyond his expertise. In December 2008, the patient was found to have wide spread metastatic disease in his lungs, liver, kidneys and brain and died in March 2009. It was claimed that the dermatologist knew of the outstanding CT scan and should have ordered same. The defense argued that a follow up CT scan is an extremely sophisticated test requiring expertise well beyond that of a dermatologist and that the only obligation the dermatologist had to the patient was to advise him to return to see the surgeon.
However, the defense of this case was complicated by the fact that since the patient had died, The Dead Man’s Statue was applicable and, hence, our client was not afforded the opportunity to testify as to any conversations that he had with the decedent. However, our client was able to testify as to those entries in his office records which indicated that the patient was exceedingly non-compliant. The plaintiff’s attorney asked for $35,000,000 in damages and the jury returned a verdict after deliberating for 30 minutes in favor of our client.