KBR Partner Douglas J. FitzMorris won a defense verdict on behalf of a hospital and a gynecologic oncologist following a two week jury trial in New York County. Plaintiff alleged that the oncologist departed from the standard of care by obtaining a verbal DNR for his patient, a 69-year-old woman with recurrent ovarian cancer. Plaintiff’s decedent presented to the hospital with complaints of fever, UTI, pain and recurrent ovarian cancer. During her hospital course, it was confirmed that she had stopped responding to treatment and that her cancer was incurable. Upon learning of these results and following several long conversations with her oncologist, the decedent executed a verbal DNR which was witnessed by other members of her care team. Several days later, the plaintiff’s decedent deteriorated and was transferred to an isolation room. She developed shortness of breath due to worsening pleural effusions and died secondary to respiratory arrest. The surviving family members denied that the decedent had ever agreed to DNR status, either verbally or in writing. In fact, the plaintiff produced at trial a handwritten document signed by decedent and witnessed by family members attesting that she did not want DNR status unless “it would result in [her] being in a vegetative state”.

Plaintiff’s expert opined that the oncologist departed from accepted practice by obtaining a verbal consent to a DNR order. On cross-examination, the expert conceded that New York State law expressly permits physicians to obtain verbal consent to DNR orders. Plaintiff’s expert responded by saying that following New York law amounted to a departure from the standard of care. Plaintiff’s expert further opined that the oncologist departed by not aggressively treating the decedent’s pleural effusions, which contributed to her arrest and death. The defense countered that the pleural effusions were not large, and did not play any significant role in the patient’s death. The defense argued that the patient’s death was a direct result of her tremendous cancer burden and was not unexpected. At the close of the plaintiff’s case in chief, Mr. FitzMorris successfully moved for a directed verdict on behalf of the nurse. It had been alleged that the nurse did not appropriately respond the arrest and arrange for prompt resuscitative measures.  

After a 2 hour deliberation, the jury returned a unanimous defense verdict on behalf of the oncologist and his hospital employer.