EMAIL TO A FRIEND COMMENT

 

Failure to Diagnose Breast Cancer; Error in Judgment Charge


A woman presented to a surgeon with a lump in her left breast. The surgeon diagnosed the woman with a benign condition that he considered “not urgent.” The surgeon neither suspected cancer nor considered the option of sending the woman for further diagnostic testing.

 

Eventually, the lump was diagnosed as cancerous. The woman required a radical mastectomy and chemotherapy that caused damage to her heart.

 

The woman sued the surgeon for medical malpractice. The complaint alleged the surgeon was negligent in failing to timely diagnose and treat her breast cancer, thereby allowing it to grow, ultimately requiring a radical mastectomy and chemotherapy that caused damage to her heart.

 

The Richmond County Supreme Court entered judgment upon a jury verdict for the surgeon.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed. The court held that the trial court did not err in denying the woman’s request for a missing witness charge with respect to the surgeon’s former office employees, including his wife; and a new trial was required because the trial court erred in giving an error in judgment charge.

 

The trial court did not err in denying the woman’s request for a missing witness charge with respect to the surgeon’s former office employees, including his wife. A missing witness charge was not warranted due to the surgeon’s failure to call his former office employees. No negative inference can be drawn from a party’s failure to call a former employee inasmuch as such a person is not within that party’s control and, therefore, a missing witness charge is not appropriate under such circumstances. With respect to the surgeon’s wife, while she was deemed to be within the surgeon’s control, the court found no indication that she possessed information on a material issue, and, therefore, a missing witness charge was not warranted.

 

A new trial was required because the trial court erred in giving an error in judgment charge. The court held that an error in judgment charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that the defendant physician considered and chose among several medically acceptable treatment alternatives. The surgeon testified that he diagnosed the woman with a benign condition “that was not urgent,” and he neither suspected cancer nor considered the option of sending her for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent with a benign condition at that time, and the “error in judgment” charge was not warranted. The court also held that the trial court’s error in giving the error in judgment charge was not harmless and thus warranted a new trial.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed the trial court’s entry of judgment on a jury verdict in favor of the surgeon.

 

See: Lacqua v. Silich, 2016 WL 4007316 (N.Y.A.D. 2 Dept., July 27, 2016) (not designated for publication).

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

See the Medical Law Perspectives June 29, 2015, Blog: Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York

 

 

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