News: A patient’s ultrasound revealed fluid in a portion of the pelvis. The patient’s physician failed to notify the patient, order further testing, or refer the patient to a specialist. The patient subsequently was diagnosed with ovarian cancer, and passed away.

The patient’s estate filed a lawsuit against the physician and the healthcare providers for wrongful death and medical malpractice. The defendants denied liability. A jury returned an award of $3.8 million, which was reduced by approximately $650,000 following an appeal.

Background: A physician ordered an ultrasound for a female patient. The ultrasound revealed fluid in the cul-de-sac portion of the pelvis. However, the physician failed to notify the patient of this fluid, did not order a cancer antigen 125 blood test to further assess the patient’s condition, and did not refer the patient to a gynecologic oncologist.

Eventually, the patient was diagnosed with ovarian cancer. By that time, the cancer had progressed significantly, and the patient passed away.

The patient’s estate filed a lawsuit against the physician and hospital, alleging the physician’s multiple failures constituted medical malpractice. According to the estate and its experts, following up with the patient and referring her for treatment could have led to a timely ovarian cancer diagnosis, allowing the patient a greater chance for survival.

The estate and the defendants presented expert testimony. The jury found the defendant physician and hospital liable for malpractice. According to the jury, the defendants’ actions breached the applicable standard of care and were a substantial factor in the delayed diagnosis, diminishing the patient’s chances for a better outcome. The jury awarded $3.8 million, including $2 million for the patient’s pain and suffering and $525,000 for each of the patient’s two surviving children.

The defendants appealed, contesting the liability and the verdict amount. The appellate court found that given the evidence provided during trial, a rational jury could determine the physician breached the duty of care. The court also explained that to establish proximate causation, a plaintiff must present sufficient medical evidence from which a reasonable person might conclude it was more probable than not that the physician’s departure from accepted community standards of practice was a substantial factor in causing the injury. Here, a valid line of reasoning existed, indicating the physician’s actions delayed the patient’s diagnosis of ovarian cancer, diminishing her chances of recovery. In another attempt to contest the liability, the defendants argued the verdict is contrary to the weight of the evidence, and thus should be set aside. Again, the appellate court found the verdict could be set aside, as it was reached after a “fair interpretation” of the evidence provided through both sides’ medical expert testimony.

As for the verdict amount, the appellate court stated the damages amount is a question for the jury, and such determination will not be disturbed unless the award deviated materially from what would be reasonable compensation. Damages in a wrongful death action are tied to pecuniary injuries suffered, which can include compensable losses of a personal nature or loss of guidance. The court was satisfied with the evidence provided to show some pecuniary damages, but determined the amount was somewhat excessive. The appellate court reduced the award from $525,000 for each child to $275,000 for one child and $125,000 for the other child. Other than this reduction, the appellate court confirmed the propriety of the jury’s verdict on liability and damages.

What this case means to you: This case presents lessons getting to the substantive heart of medical malpractice actions: Liability arises if a physician or care provider fails to abide by the applicable standard of care and that failure causes harm to the patient. Determining the applicable standard of care falls within the purview of a jury that usually is presented with two competing versions of what the purported standard of care should be — one version from the patient’s experts, and one version from the physician or care provider’s experts. Juries must rely on the evidence to make such a determination, and a material deviation or disregard of that evidence can result in an appellate court subsequently reversing the jury’s findings. However, absent such a significant deviation or disregard, appellate courts can and regularly do confirm juries’ findings, such as in this case where the appellate court confirmed the estate’s expert presented sufficient evidence and analysis that was beyond mere speculation.

When a physician orders a diagnostic study, he or she is obligated to obtain the results of that study, compare the reported result to the clinical presentation of the patient, inform the patient of the finding from the study. If the results are abnormal or questionable, present the patient with a plan of care. Anything less may be considered practice below the standard of care, a breach of the physician’s duties to the patient, and constitute medical malpractice if the patient suffered harm. In this case, the trial and appellate courts affirmed the jury’s verdict.

Determining the amount of damages necessary to remedy a patient’s harm also is the jury’s responsibility. Courts intervene in reducing such damages awards only under limited circumstances; for instance, if the compensation deviates from the evidence presented or if the compensation is beyond what would be considered reasonable. When malpractice results in a patient’s death, there are many different types of damages that can be awarded to the patient’s estate or to the patient’s surviving family, including loss of support, voluntary assistance, possible inheritance, and medical and funeral expenses incidental to death. In this case, the defendants’ appeal was partially successful as it reduced the amount of the damages award by approximately $650,000 as the appellate court found that more closely represented “reasonable compensation.”


  • Decided July 28, 2021, in the Supreme Court of New York, Appellate Division, Second Department, Case Number 2018-10993.