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Defense Verdict Obtained By Anthony Sola in Failure to Diagnose DLBCL

June 8, 2018

May 2018: Senior Trial Partner Anthony M. Sola, assisted by Of Counsel Tracy A. Abramson and Associate Jacqueline A. Wild,  obtained a defense verdict after a 3 week trial in Supreme Court, Nassau County before Justice Thomas Feinman.   The case involved an allegation that the defendant physicians failed to diagnose a Diffuse Large B Cell Lymphoma (DLBCL) in the lung  of a 29 year old woman during her pregnancy. During her entire pregnancy she   complained of  a severe cough  and chest pain, and,  starting in the second trimester,  she developed a severe rash over most of her body.  A month after her delivery, her family doctor ordered a chest x-ray which soon after led to a diagnosis of a Stage IV DLBCL for which she was treated at Memorial Sloan Kettering Medical Center with an experimental therapy protocol. She was still in remission at the time of trial. In retrospect, the cough, chest pain and rash were due to the DLBCL.

At trial, the defense focused on the fact that the plaintiff’s complaints were outside of their area of expertise so they  properly referred the patient to a pulmonary specialist and a dermatologist who were not named defendants. Plaintiff claimed that the obstetricians were acting as her primary care doctor during the pregnancy and failed to coordinate the care and arrange, among other things,  for  a chest imaging study suggested by one of the pulmonologists. We were able to impeach the credibility of the plaintiff on the issue of who was her primary care physician by introducing a record we uncovered during our  pretrial preparation that showed the plaintiff went to a different doctor during her pregnancy at which time she wrote on that doctor’s intake form the name of  a another  doctor as her primary  care physician. We further were able to demonstrate that the suggestion for  a chest imaging study was one that the outside specialist was considering performing and was not a recommendation to the obstetricians to order. Finally, we were able to prove that the patient herself failed to follow up with some of  the outside specialists.

The jury returned a verdict in favor of the defendants dismissing the entire complaint.  Because the jury did not completely follow the instructions on the  verdict sheet, they went further than required and also answered the culpable conduct questions, finding that the plaintiff herself was 100% responsible for any delay in the diagnosis!

 

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