KBR WINS DEFENSE VERDICT IN FAILURE TO DIAGNOSE GASTRIC CANCER CASE 

 

In this medical malpractice action, KBR represented an oncologist, a gastroenterologist and their hospital employer.  Plaintiff's decedent had a history of breast cancer for which she received treatment from the defendant oncologist.  In the course of follow-up care, the patient was found to have an elevated CEA level, also known as a "tumor marker" which can be indicative of a recurrence of the cancer.  The oncologist ordered various tests and made referrals to other specialists, including the defendant gastroenterologist, to investigate the cause of the abnormal test results.  No cause was found and the patient's CEA level returned to normal.  Subsequently, the patient was diagnosed with Stage IV gastric cancer with metastasis to the omentum; she died eleven months later.

 

The plaintiff prosecuted this case on the theory that the defendants negligently failed to order and perform an upper endoscopy on the patient in 2003 and 2004.  They claimed that had the procedure been performed at that time, the cancer would have been diagnosed and the patient would have lived.  The plaintiff supported his case with expert testimony from a gastroenterologist and an oncologist.

 

KBR introduced the testimony of the defendant gastroenterologist and a retained expert gastroenterologist along with the testimony of the defendant oncologist and a retained expert oncologist to support their position that an upper endoscopy was not indicated for this patient in 2003 or 2004.  The defense established that the patient was not afflicted with gastric cancer in 2003 or 2004; rather, the patient suffered from a highly aggressive form of gastric cancer which developed in late 2005 and rapidly metastasized, causing her death.  The experts explained that if this patient's gastric cancer had existed in 2003 or 2004 the patient would have died before she was diagnosed with this disease in 2005.

 

The jury decided that the defendant oncologist did not depart from the standard of care by not recommending that the patient have an upper endoscopy and that the defendant gastroenterologist did not depart from the standard of care by not performing an upper endoscopy in this case.  As a result, the jury never reached the question of causation.

 

The plaintiff made a post-trial motion to set aside the jury's verdict in favor of the defendants. (motion is still pending)

 

Andrew S. Kaufman, of the Medical Malpractice group obtained this defense verdict on behalf of KBR's clients.  Jacqueline Mandell handled the post-trial motion for the Appellate Practice group.

 

Mednik, (Supreme Court, Kings County, Index #:  21120/07)