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Recent Verdicts

Belair & Evans LLP has been serving clients throughout New York City, Long Island, and Westchester, Suffolk and Nassau counties for more than 25 years. During that time, the firm has achieved multiple successes for its clients. A small sample of our recent verdicts is shown below.

Cases

Neal vs Campbell

Verdict Defense

John T. Evans, Belair & Evans LLP
Court Kings Supreme
Judge Gloria Dabiri
Date l0/0/17

On August 16, 2010 plaintiffs decedent Sarah Neal was admitted to Kings brook Jewish Medical Center via the emergency room complaining of lower abdominal pain.

On August 25, 2010 Dr. Bruce Campbell, a radiologist at Kingsbrook, read a CT scan of the abdomen and pelvis with contrast. Dr. Campbell reported the bladder as unremarkable but reported enlarged lymph nodes in the abdomen and pelvis as well as calcified lymph nodes in the inguinal area and mediastinum.

On August 27, 2010 a surgeon, Dr. N. Kumthekar, biopsied three lymph nodes in the inguinal area that were reported as negative for cancer but calcified due to an old indolent disease, sarcoidosis.

The patient was discharged on August 30, 2010 with instructions to report to the oncology clinic within seven days and also to report to the pulmonary clinic for the sarcoidosis as well as see the surgeon for follow-up wound care. The patient reported to the pulmonology clinic and saw the surgeon post-operatively but never reported to the oncology clinic. Six months later on March 3, 2011 the decedent was admitted to Kings County Hospital where a CT with contrast showed bladder cancer on the left side of the bladder that had metastasized to the bones and lymph nodes. The patient underwent chemotherapy and radiation treatments unsuccessfully and died on December 4, 2012.

The plaintiff claimed that the CT exam read by Dr. Campbell showed bladder wall thickening on the left side and should have been reported. This would have led to a biopsy by a urologist and a diagnosis with an 80% chance of cure. The defense said the apparent thickening of the bladder was caused by an enlarged lymph node lying next to the left bladder wall which caused an indentation and is known as “pseudo-thickening.” The defense also said that Dr. Campbell reported an aggressive process in the lymph nodes in the abdomen and pelvis and these nodes should have been biopsied, not the inguinal nodes. In addition, the defense claimed that the abnormal nodes in the abdomen and pelvis were metastatic disease since they shrank after chemotherapy.
This would have made the decedent Stage 4 at the time Dr. Campbell read the CT with a five-year survival rate of five percent. Additionally, the defense expert testified there was evidence of bone metastasis on the scan read by Dr. Campbell, although not reported by him. This also would have made Ms. Neal Stage 4.

The decedent died leaving a granddaughter whom she raised since birth, the nominal plaintiff.

Although the surgeon and hospital were originally defendants they were voluntarily discontinued prior to trial. Despite the bladder wall thickening on the CT scan that was the subject of the lawsuit, John Evans was able to convince the jury that Dr. Campbell did not depart from accepted standards of practice in not identifying bladder wall thickening when he read the CT scan.

Trial Length Three Weeks
Trial Deliberations: One Hour
Jury Vote: 6-0
Jury Composition: 3 males, 3 females


Anarumo vs Herzog

XXXV /13-10
MEDICAL MALPRACTICE
Prescription and Medication OB-GYN
Doc claimed patient’s reticence led to improper prescription
Verdict Defense
Case Mary Anarumo v. David Herzog, M.D., Individually and Doing Business as David Herzog, M.D., P.C., No. 151065/14
Court Richmond Supreme
Judge Orlando Marrazzo Jr.
Date 8/3/2017
Plaintiff Attorney(s) S. Joonho Hong, Parker Waichman LLP, Port Washington, NY
Defense Attomey(s) John T. Evans, Belair & Evans LLP, New York, NY
Vincent J. Frazzetto, Belair & Evans LLP, New York, NY

Facts & Allegations On Sept. 7, 2012, plaintiff Mary Anarumo, a 34-year- old unemployed woman, suffered symptoms that suggested the onset of a stroke. She was transported to a hospital, where a stroke was diagnosed. Anarumo claimed that the stroke was caused by an oral contraceptive, Ortho Tri-Cyclen Lo, which had been prescribed by her gynecologist, Dr. David Herzog. Anarumo claimed that she suffers mild residual effects of the stroke.

Anarumo sued Herzog and his practice. Anarumo alleged that Herzog failed to ascertain and/or consider circumstances that contraindicated prescription of the contraceptive, that Herzog’s failure constituted malpractice, and that Herzog’s practice was vicariously liable for Herzog’s actions.

Anarumo’s counsel noted that Anarumo suffers thrombophilia, which is a condition that increases the person’s likelihood of developing a clot. He also noted that Anarumo had suffered a prior stroke. Anarumo claimed that those circumstances had been repeatedly reported to Herzog. Anarumo’s expert gynecologist contended that orally administered contraceptives should not be used by women who suffer thrombophilia, and he opined that Herzog should not have prescribed Ortho Tri-Cyc\en Lo. He contended that Herzog’s actions constituted a departure from an accepted standard of medical care.

Herzog acknowledged that Anarumo suffered a condition that contraindicated prescription of Ortho Tri-Cyclen Lo, but he claimed that he had not been aware of that element of her medical history. He claimed that he requested Anarumo’s medical history, but that she did not report any such condition. He claimed that she was experiencing a manic manifestation of bipolar disorder, and he suggested that she resuItant1y with heId disclosure of any contraindicating conditions. He did not deny that Anarumo had previously disclosed such a condition, but he claimed that the contraceptive was prescribed while her prior records were at a facility that was creating digital copies of his patients’ records.

Injuries/Damage s epilepsy; seizure; stroke; vertigo

Anarumo suffered symptoms that suggested the onset of a stroke. She experienced paralysis of the left side of her face. She was placed in an ambulance, and she was transported to a hospital. A doctor opined that Anarumo suffered a stroke. Medication resolved her symptoms, and her hospitalization lasted three days.

Anarumo subsequently suffered two seizures, which were deemed a product of epilepsy. She also claimed that she suffers dizziness and vertigo. She sought recovery of past medical expenses, damages for past pain and suffering, and damages for future pain and suffering.

Result The jury rendered a defense verdict.
Insurer(s) Medical Liability Mutual Insurance Co. for both defendants
Trial Details Trial Length: 12 days
    Trial Deliberations: 4 hours
    Jury Vote: 6-0
    Jury Composition: 2 male, 4 female
Plaintiff Expert(s) Gary R. Brickner, M.D ., gynecology, Hamilton, NJ
    Ranga C. Krishna, M.D., neurology, Brooklyn, NY
    James T. O’Donnell, Ph.D., pharmacology, Barrington, IL
Defense Expert(s) Howard Crystal, M.D., neurology, Brooklyn, NY
    Kevin Reilly, M.D., gynecology, Mount Kisco, NY
    Charles Stier, Ph.D., pharmacology, Valhalla, NY
Post-Trial Plaintiff’s counsel has expressed an intention to challenge the verdict.


Williams vs Tuchman

John Evans concluded a trial on April 25, 2016 with a defendant’s verdict.

The case concerned a 25-year old day care worker who was mis-diagnosed with an ectopic pregnancy. She was administered an intramuscular injection of Methotrexate to terminate the pregnancy that she wanted. Approximately ten days after the administration of the drug to terminate the pregnancy, sonograms revealed the pregnancy to be intrauterine and with a heartbeat. One week after the discovery of the intrauterine pregnancy the fetal heart stopped beating and a D&C was performed.

The plaintiff alleged that it was malpractice to terminate a desired intrauterine pregnancy with Methotrexate.

John defended the case by explaining the significance of Beta HCG hormone levels. When the plaintiff first appeared in the hospital ER on November 12, 2010 complaining of abdominal pain a serum blood test revealed she was pregnant with a Beta HCG level of 1527. A sonogram performed that evening was equivocal as to whether there was a gestational sac in the uterus. The plaintiff was told to follow in the ob clinic in 48 hours and discharged.

She returned on November 15, 2010 to the ER, again complaining of pain. The Beta HCG hormone level now was 3757. Two separate sonograms did not reveal a uterine sac and the presumptive diagnosis was ectopic pregnancy. The gynecologist that we represented then administered the Methotrexate on that date to terminate the pregnancy.

The plaintiff appeared at another hospital ten days after the administration of the drug to terminate the pregnancy where a sonogram showed an intrauterine fetus with a heartbeat. The fetus expired a few days after.

We defended the case by showing that one can usually expect to see a gestational sac when the Beta HCG levels reach 1500-2000. When the level was more than 3500 on the day the Methotrexate was given it was extremely unusual not to see a sac. Not seeing a gestational sac with Beta HCG levels of 3757 made it very unlikely that an intrauterine pregnancy would be a viable one anyway.

The jury agreed with our position and rendered a defense verdict for our client, the ob/gyn physician.


See: Ingrassia v. Herzog, Supreme Court/Kings County, Index No. 9588/11; Verdict February 26, 2015

Medical malpractice defense – failure to diagnose and delayed treatment, ob/gyn.

On February 26, 2015, a jury rendered a verdict in favor of an obstetrician defended by John Evans where the plaintiff alleged the doctor failed to properly diagnose her pregnancy. Plaintiff’s pregnancy was in fact an ectopic pregnancy, which is a pregnancy whose embryo has become implanted outside the womb. She contended that a timely diagnosis would have allowed nonsurgical means of terminating the pregnancy.

The embryo was removed via laparoscopic surgery. Plaintiff claimed that the surgery involved removal or destruction of a fallopian tube.

John contended that the plaintiff did not incur an injury or damages. He claimed that Winthrop University Hospital’s records indicated that the plaintiff did not undergo removal of a fallopian tube. He also contended that the plaintiff could undergo in-vitro fertilization. Herzog claimed that the plaintiff expressed that she wanted to undergo blockage of her fallopian tubes, a sterilization procedure, but the plaintiff denied having expressed such a desire.

Result: The jury rendered a defense verdict. It found that Herzog did not depart from an accepted standard of medical care.


On April 23, 2013 a jury in Manhattan returned a verdict in favor of an orthopedist defended by Raymond Belair.

Plaintiff underwent a meniscectomy of his right knee by the defendant orthopedist. He thereafter developed pulmonary emboli, requiring a lengthy hospitalization and development of complications that necessitated replacement of his right knee. Plaintiff claimed that his emboli could have been prevented, and than the physician had not disclosed that the menisceczomy could have led to the development of emboli.

Plaintiff claimed the physician failed to anti-coagulate him and failed to obtain informed consent for the meniscectomy.

Plaintiff claimed the surgery was necessitated by a traumatic injury that caused a prolonged, severe limitation of plaintiff’s mobility. The expert also noted that plaintiff had previously developed a deep vein thrombosis. He contended that those circumstances increased the likelihood of developing an embolus, and should have prompted administration of an anticoagulant.

Plaintiff claimed that the orthopedist had not disclosed that a thrombosis and/or emboli were possible results of the meniscectomy. He claimed that he would not have undergone a meniscectomy that involved those risks. The defense contended than an anticoagulant should not have been administered prior to the performance of the meniscectomy because it would have increased the risk of uncontrollable bleeding, and that plaintiff did not suffer from any pre-existing conditions that increased his likelihood of developing a thrombosis because the prior thrombosis was a result of a traumatic injury.

Plaintiff claimed that his emboli hindered the healing of his surgical wound and this led to hemarthrosis: bleeding that invades a joint. The condition necessitated replacement of the knee. Plaintiff developed a postsurgical infection that necessitated additional treatment. Other surgeries followed and plaintiff ultimately underwent a second replacement of his right knee. At trial plaintiff claimed than his limp and the failed knee replacement were permanent. He also claimed to suffer from constant, extreme residual pain, that he required use of a cane and that he cannot resume work. He also claimed that he required use of an anticoagulant.

Plaintiff asked the jury for a total of $8,700,000 for past and future medical expenses, loss earnings and pain and suffering.

Result: The jury rendered a defense verdict. It found that the defendant did not fully disclose the meniscectomy benefits and risks, but it also found that a reasonable, adequately informed patient would have undergone the procedure.


See: Medical Malpractice – Surgical error, foreign object, failure to detect, gynecological surgery, ob-gyn

On October 4, 2012, after a nine-day trial, a jury rendered a verdict in favor of a gynecologist defended by John Evans where the plaintiff alleged that a clip was not removed during a hysterectomy, causing the loss of most of the functionality of plaintiff’s right kidney.

After eight months had passed, plaintiff lost most of the functionality of her right kidney. A test revealed severe atrophy of the kidney. The atrophy was caused by a complete obstruction of plaintiff’s right ureter. Plaintiff claimed that the obstruction was a result of a clip that was applied during the hysterectomy.

Plaintiff’s counsel noted that the surgery was complicated by plaintiff’s loss of more than 850 cubic centimeters of blood, and she further noted that the problem was addressed via the doctors’ application of clips. The plaintiff’s expert radiologist reviewed the results of CT scans that were performed after the surgery, and he opined that the images suggested that a clip had been applied to plaintiff’s right ureter. Plaintiff’s expert gynecologist and expert urologist opined that plaintiff’s post-surgical symptoms supported the radiologist’s opinion, and they agreed that the clip was not removed after the surgery had been completed. Plaintiff’s counsel contended that the ureter should have been inspected before the surgery was concluded.

The defense acknowledged that clips were applied during the surgery, but they contended that a clip was not applied to the plaintiff’s right ureter. The defense’s expert radiologist acknowledged that CT scans revealed the presence of a clip, but he claimed that the clip was not positioned on the ureter. The defense’ expert obstetrician and expert radiologist opined that the ureter’s obstruction was caused by scar tissue that formed during the aftermath of the surgery, and they contended that the tissue’s development could not have been prevented.


Medical malpractice defense — brain damage and inability to work following a stroke

On August 17, 2011, following a six week trial, a jury returned a verdict in favor of an internist-pulmonologist represented by Raymond Belair, where plaintiff claimed brain damage and inability to work following a stroke in 2006.

In November, 2006 the plaintiff, a 49 year-old MTA bus driver, developed atrial fibrillation (a cardiac arrhythmia which can cause clot formation and stroke). He was hospitalized in a coronary care unit and briefly anticoagulated with Heparin while he was evaluated. He converted to normal rhythm, was evaluated as low risk for clot and stroke and was discharged home 48 hours after admission. Four hours later he suffered a massive stroke at home, was re-hospitalized and found to have a blockage in the left middle cerebral artery consistent with a clot. His stroke resulted in cognitive impairment and right sided weakness which prevented him from returning to work. He retired on disability. At trial he claimed lost earnings and benefits of $2,000,000, and $4,500,000 for life-long therapies, support services and medical treatment. In addition, damages for pain and suffering in the amount $2,000,000 were claimed.

It was claimed that the patient should have been continued on the anticoagulant Heparin for at least an additional 48 hours because of the ongoing risk of clot formation.

Ray was able to persuade the jury that, notwithstanding the coincidental timing of the stroke, it was not caused by a blood clot secondary to the atrial fibrillation. Rather, he successful argued that CT scans of the patient’s brain demonstrated that the blockage, while consistent with a blood clot, was actually a bit of calcium which could have migrated from either the patient’s mitral valve, which was calcified, or from his atherosclerotic heart vessels. The CT’s density measurement, which was performed by the neuroradiological expert Ray called to testify, established that the material causing the blockage was far too dense to have been a blood clot.

See: Rocco v. Ahmed
Supreme Court: Richmond County
Index No: 101955/07
Verdict: August 17, 2011

Medical malpractice defense — birth injury during C-section

On January 31, 2011 a jury rendered a verdict in favor of an obstetrician defended by John Evans where the plaintiffs alleged brain damage in an infant due to the failure to timely perform a cesarean section.

On the evening of January 9, 2003, the mother, Samantha Gatti, was admitted to the hospital after going into labor for the delivery of her first child. At approximately noon the following day the fetal heart monitoring strips became non-reassuring and the obstetrician called for an emergency cesarean section which was performed approximately half-hour later.

The child was born without respirations or color or reflexes with an initial Apgar score of two at one minute and four at five minutes. The baby required resuscitation and intubation and was taken to the neonatal intensive care unit. Seizures were noted by the pediatricians in the second day of life which prompted an MRI and CT scan of the brain.

The MRI showed a hematoma on both sides of the brain and a subarachnoid hemorrhage. The CT scan showed a skull fracture. The plaintiff’s attorney alleged that the doctor should have delivered the baby two hours before he called for the cesarean section due to an arrest of labor.

John was able to convince the jury that labor had not arrested when the plaintiffs claimed it had and that despite the child’s injuries the cesarean section was timely called for and performed. The jury found the obstetrician not liable for injuries sustained by the baby and said the physician did not depart from accepted standards of care.

John explained to the jury that the injuries probably resulted from the obstetrician having to remove the baby’s head from the pelvis during the cesarean section.

See: Avolio v. Schirripa
Supreme Court: Richmond County
Index No: 103158/06
Verdict: January 31, 2011

Medical malpractice defense — gynecological surgery

On September 20, 2010, a jury returned a verdict in favor of an obstetrician-gynecologist defended by Raymond Belair where the plaintiff claimed negligent gynecological surgery caused an ectopic pregnancy, further surgery and needless loss of fallopian tubes and resulting infertility.

On September 17, 2002, plaintiff underwent an abortion, performed by another physician. She was seen by the defendant gynecologist on September 22, 2002 with vaginal bleeding and bony fragments being passed from the vagina. An incomplete abortion with retained products of conception was diagnosed. A dilation and curettage (D&C) was performed. Soft tissue and bony parts were removed.

Seven months later she presented to another physician with vaginal bleeding and an ectopic pregnancy (a non-viable pregnancy in the fallopian tube) was diagnosed. Following unsuccessful medical treatment, the tube was removed surgically. The following month the patient began to experience pelvic pain and pain on intercourse. She was worked up and retained bone in the wall of the uterus was diagnosed. Surgery was performed but not all of the bone could be removed.

Plaintiff claimed the bone had been negligently left behind during the gynecologist’s D&C which was not performed under ultrasound guidance. Neither was an ultrasound used post-operatively to ensure all bony fragments had been removed. All of the patient’s subsequent problems were alleged to be the result of the negligence.

Ray was able to persuade the jury that the bony fragment which was left behind was in the muscle wall of the uterus where it was harmless and that going onto the muscle wall risked potentially catastrophic bleeding, particularly in a patient with a recent abortion. He further convinced the jury that his client’s actions were appropriate since a D&C is not ordinarily done with ultrasound, either intra-operatively or part-operatively. He established that such practices have never been taught in the major New York City hospital gynecological residency programs, that the bony fragment had nothing to do with the subsequent problems and that the bony fragment ought never to have been even partially removed by the subsequent surgeon who testified against his client. Ray forced that surgeon to admit that the reason he did not remove all the bony fragments from the muscular uterine wall was because of the risk of bleeding and other complications – the very reason his client acted appropriately in not cutting into the muscular wall at the D&C.

The jury rendered a defense verdict, finding the gynecologist did not depart from accepted practice.

See: Biega v. Rosenman
Supreme Court: New York County
Index No: 106843/04
Verdict: September 20, 2010

Medical malpractice defense — birth injury

John Evans successfully defended an obstetrician accused of negligence in the delivery of an infant resulting in Erb’s palsy to the child.

During the delivery of the infant Kameron Nibbs his right shoulder was lodged under this mother’s pubic bone. This is a complication known as shoulder dystocia requiring certain careful maneuvers by the obstetrician to prevent nerve damage to the brachial plexus.

Kameron was delivered but unfortunately sustained injury to his brachial plexus that resulted in permanent nerve damage that caused paralysis of his right arm (Erb’s palsy).

Plaintiff’s attorneys usually consider these cases ones of almost certain liability. However, John was able to convince the jury that the condition of shoulder dystocia was a true obstetrical emergency and that in spite of the physician performing appropriate maneuvers to free the shoulder, sometimes injury is inevitable. In this case John convinced the jury that the Erb’s palsy was caused by forces of labor causing a stretching of the brachial plexus while the shoulder was impacted.

The jury rendered a defense verdict saying that the obstetrician did not depart from the standards of care.

See: Nibbs v. St. Vincent’s Medical Center
Supreme Court: Richmond County
Index No: 100886/05
Verdict: February 11, 2010

Medical malpractice defense — drug-related death

On March 19, 2009, a jury returned a verdict in favor of an internist-nutritionist represented by Raymond Belair where plaintiff alleged the injuries resulting in pain, suffering and death due to the negligent prescription of the anorectic diet drugs Redux and Meridia. The case was previously tried in 2005, when a jury returned a verdict of $2,000,000 in favor of plaintiff. That verdict was set aside by the trial judge, based on an inflammatory summation by plaintiff’s attorney. The Appellate Division, Second Department, affirmed the setting aside of the verdict.

From February through September, 1997 plaintiff was treated for obesity and related hypoventilation and sleep apnea with counseling and Redux. During that time her weight fell from 334 pounds to 300 pounds. Redux was discontinued in September, 1997 when the drug was recalled by the manufacturer. The patient returned a year later, in September, 1998, having regained over 40 pounds. Another anorectic drug, Meridia, was then prescribed. A week later plaintiff developed acute respiratory distress and presented to the physician who had her emergently admitted to a hospital’s critical care unit. She did not recover and died two weeks later. Plaintiff claimed that plaintiff died as a result of hypertensive cardiovascular disease and congestive heart failure brought on by Redux and Meridia which ought never to be given to patients with hypertension and congestive heart failure.

Ray was able to persuade the jury that the same physical infirmities which decedent suffered could only be treated by weight loss, as this would reduce the load on her heart and would improve respiratory function. Ray explained to the jury that the treatment was in keeping with accepted medical practice and that the decedent’s deterioration was due to her continuing obesity-related problems which predisposed her to an opportunistic infection, sepsis and death.

See: Grasso v. Lieto
Supreme Court: Richmond County
Index No: 10364/00
Verdict: March 19, 2009


Medical malpractice defense — representing a radiology and imaging center

The plaintiff, a 40-year-old woman, was a patient at our client’s imaging center. She had a maternal history of breast cancer, which put her in the high-risk category. In November 2002 the plaintiff had bilateral mammography and sonography which was read as normal by our client, the radiologist, and a bi-rads category of two was assigned as one micro-calcification was seen on the mammogram. The plaintiff had dense fibrocystic breasts.

The next mammogram, which was the subject of the trial, was taken in September 2003. The plaintiff acknowledged she was to return yearly for mammograms and admitted skipping one year. This mammogram was also given a bi-rads category of two, reporting no suspicious clusters of micro-calcifications. This mammogram, however, showed two new calcifications in fairly close proximity about one to 1.5 cm apart in the right breast. The plaintiff’s radiology expert at trial read the mammogram as showing a cluster of three or four micro-calcifications within a centimeter and said a biopsy was warranted.

The plaintiff next appeared four months later in January 2004 complaining of a lump in the left breast. Mammography and sonography were performed on the left breast only, which showed a cyst. The cyst was aspirated with a needle biopsy and was shown to be benign.

She next came to the imaging center one year later. At this time there were significant changes in the mammogram of the right breast. Micro-calcifications had increased to five or six within 1-1/2 cm and there was architectural distortion.

Subsequent mastectomy included removing a 3.5 cm tumor. Lymph node dissection showed six of eleven nodes positive for metastatic disease.

The tumor showed a bad prognosis, being estrogen and progesterone receptor negative. She had a high mitotic count and the tumor was HER 2 positive, all very bad prognostic factors indicating an aggressive tumor.

The plaintiff was still alive and testified at trial.

The allegation of malpractice was that the September 2003 mammogram was misread and further spot magnification films should have been done.

The defense position was that any changes in the September mammogram were benign findings and the morphology of the calcifications indicated they were from the cysts in the breast and benign.

John Evans, the trial attorney, had read prior trial transcripts of the plaintiff’s radiology expert. The expert claimed he had an academic rank at NYU Medical College; however, he only had an affiliation with a small community hospital. Suspecting the expert was embellishing his credentials, John checked with the Department of Radiology at NYU. It turned out he did not have an academic appointment.

These cases are especially difficult for a lay jury as what is interpreted as a micro-calcification by an expert could be artifact.

When the expert was caught lying about his credentials at trial he lost all credibility. The jury returned a verdict in favor of the radiologist and the imaging center. Amazingly, none of the other prior defense attorneys had bothered to check this expert’s credentials, but that is something we always do at Belair & Evans. In this case the jury returned a verdict of no liability in favor of our clients, the radiologist and the imaging center.

See: Landa v. Manhattan Medical Imaging
Supreme Court: New York County
Verdict: May 10, 2007


Medical malpractice defense — failure to diagnose cancer

On June 1, 2006, a jury found in favor of a thoracic surgeon represented by Raymond Belair where plaintiff alleged the surgeon negligently performed a surgical biopsy of a cancerous mass in her chest. The chance for a cure of the cancer was allegedly lost.

The biopsy was performed on May 14, 2001, and the results were negative for cancer. The surgeon recommended a follow-up CT scan. A February 2002 surgical biopsy of the same area revealed a cancerous growth. It was alleged that the chance to make a timely diagnosis of the cancer was lost by a negligent biopsy which was directed to an area other than the mass, thus returning a false negative. This, it was alleged, allowed the tumor to triple in size from 2.5 cm by 3 cm mass to a 6 cm by 6 cm mass.

Ray was able to successfully explain that the mass consisted of a number of lymph nodes which were properly biopsied. However, when lymph nodes are only partially taken over by cancer, even a properly performed biopsy may not return any cancer cells. The cells recovered were reactive to the cancer (hyperplastic) but not yet cancerous. Furthermore, it was successfully demonstrated that the cancer cells had most likely migrated from the lungs and were, because of their location, inoperable at the time of the first biopsy.

The jury returned a defense verdict, finding the surgeon had performed the biopsy properly.

See: DiFede v. Galdieri
Supreme Court: Richmond County
Index No: 12565/03
Verdict: June 1, 2006

Contact the firm

Belair & Evans LLP represents insurance companies, self-insured entities, hospitals and other New York businesses as well as injured individuals in injury, insurance, and malpractice cases. Belair & Evans LLP’s main office is located in the Wall Street area of New York City, with satellite offices in Bronxville, Westchester County and in Mineola, Long Island.

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