Doctor Faces Medical Malpractice Claim for Failing to Diagnose Cancer

The Supreme Court of the State of New York, First Judicial Department affirmed an order by the Supreme Court of New York County that had dismissed a doctor’s motion for summary judgment that sought dismissal of a case alleging that the doctor failed to diagnose pelvic cancer.

The plaintiff had a long and tumultuous history of cancer. Despite being aware of this, plaintiff’s doctor failed to diagnose a cancerous mass in the plaintiff’s pelvis. At the time, the plaintiff was undergoing IVF procedures with the gynecologist doctor. IVF, or in vitro fertilization, helps women increase their chances of carrying a child to term by implanting fertilized eggs into their uteruses. This form of pregnancy is referred to as in vitro because the sperm fertilizes the egg in a laboratory dish before then being carefully injected into the uterus. The IVF procedure is long and complex. Prior to beginning IVF, patients generally seek supervised treatment from gynecologists, including ultrasound scans of their ovaries and uteruses, hormone injections, and more.

During this time period, the plaintiff had a cancerous mass in her pelvis that went undetected and undiagnosed by the gynecologist defendant overseeing the IVF procedure. The plaintiff brought a medical malpractice claim for failure to diagnose.

The defendant filed a motion for summary judgment, arguing he was entitled to judgment as a matter of law. In his motion, the defendant included the opinion of an independent medical expert. However, this medical expert failed to properly address the plaintiff’s allegation that the doctor had not properly diagnosed the cancer and that the doctor’s malpractice had not proximately caused her injuries. Because the defendant failed to make a prima facie showing that he was entitled to dismissal of the case, the burden never shifted to the plaintiff to raise an issue of fact.

In general, when a party files a motion, it is that party’s burden to prove the motion. If that party is able to prove in their motion for summary judgment that there is no triable or disputed issue of fact, then they have built what is known as a prima facie case. The court must view the evidence in the light most favorable to the non-moving party. A prima facie case, if unrebutted by the non-moving party, will require that the motion be granted and the case dismissed. However, if a prima facie case has been built, the burden will then shift to the non-moving party to then raise a triable issue of fact.

Here, the defendant argued there was no disputed issue of fact. However, the defendant’s expert testimony did not support this conclusion or rebut any of the allegations in the plaintiff’s complaint, if viewing everything in the light most favorable to the plaintiff. Thus a prima facie case was not built. Because one was not built, the burden never shifted to the plaintiff to then raise a triable issue of fact regarding the failure to diagnose.

With that said, even though it was not her burden to do so in this case, the plaintiff did successfully raise an issue of fact. The plaintiff’s expert, a gynecological oncologist, testified. This expert stated that a transvaginal ultrasound, commonly used by gynecologists, would have been more accurate in detecting the pelvic cancer. In addition, the expert opined that the cancer should have been discovered earlier because it was an endometrial sarcoma, which is a low-grade and slow growing cancer. Thus the defendant doctor should have discovered the cancer during the length of time the plaintiff was in his care.

As expected, the defendant’s and plaintiff’s experts offered competing opinions and conclusions. Due to the competing opinions, there was a genuine dispute of material fact regarding the cause and the progression of the disease. This was for a jury to decide, not a judge during a summary judgment motion. It is the job of the jury to act as the fact finder for disputed facts, not the judge.

If you or a loved one has suffered injury due to medical malpractice or a misdiagnosed illness, contact the New York medical malpractice expert attorneys at Gallivan & Gallivan today to schedule a consultation.

Carnovali v. Sher et al., 2014 NY Slip Op 07252

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