A Lethal Miscommunication

CASE TYPE: General Negligence | AWARD: $3.4 million

This case began with a call from a retired police officer. He was a friend of the individual who became our client. In fact, this officer had been a client of ours. We had gotten him and another police officer good results in their case, and they were hopeful we could do the same here. 

The client was a burly fellow who had been in the trucking and construction business. He had been married several times and was now retired.

He believed he was the victim of medical malpractice and had consulted another attorney from the small town in which he lived, just outside of Albany, New York. He was told that he had a case, but the statute of limitations had expired. 

In medical malpractice cases, the general rule is you have 30 months from the act of malpractice to file a case. That’s not a hard and fast rule, mind you. There are a few things that expand it beyond 30 months. One is where despite the act of malpractice, you continue to see that same physician on a regular basis. In such cases, the clock does not start ticking until you leave his/her practice. This is known as the Continuous Treatment Rule. Another exception is when a medical device or tool is placed in the body that shouldn’t be there, in which case the 30-month clock starts when the object is discovered. 

Hoping to get a second opinion, he called us. By this time, it had been 35 months since the alleged malpractice. 

Here are the facts of the case: The client became a patient at St. Peter’s Hospital in Albany to investigate gastrointestinal issues. Several tests were run, and treatment administered. He recovered from his apparently then brief ailment in the hospital and was discharged. 

About two years later, he began to have gastrointestinal problems again. This time he went directly to the office of the physician who had treated him in the hospital. The doctor said, “Before we talk about treatment I need to ask: What are you doing for your liver cancer?”

The client was shocked! He had never been told he had liver cancer. The doctor pulled out a report of a CAT scan of his liver that had been done when he was in the hospital two years earlier. The scan showed a small tumor. 

Right away he sought out a cancer specialist. After cancer treatment began, he called a local attorney, who told him it was too late to sue. But I wasn’t going to give up so easily. 

It had been 35 months since the alleged malpractice. The statute of limitations for most cases of negligence, such as those involving an auto or slip-and-fall accident, is 36 months. My goal was to prove the negligence here was not of the medical variety, but of more conventional neglect, thus allowing us to use the 36-month window to file a lawsuit. 

We researched the matter and came to the conclusion that we could claim general negligence. We would sue on the basis of failing to communicate to the patient that he had a tumor. To do this, we had to be careful to point out that the failure was not poor or insufficient treatment. Our arguments had to be tight and specific. 

We entered into the lawsuit just short of 36 months. As expected, the attorneys for the hospital filed a motion to have the lawsuit dismissed due to being outside the 30-month malpractice statute of limitations. The judge assigned to the case was tough, Judge Joseph Teresi. I once had a case in front of him for three weeks in which all manner of rulings were made that threatened to prevent the case from going forward. 

Thankfully, we prevailed there. And we prevailed here too!

The judge ruled in our favor, allowing the case to proceed on grounds of general negligence.

Interestingly, the hospital declined to appeal the ruling. They had every right to seek a higher court’s opinion. They even could have done so while moving forward with the case. So why didn’t the hospital appeal? I didn’t find out until the case was nearly over.

Still, the hospital attorneys fought us tooth and nail. Their strongest defense was to claim that telling our client he had cancer two years earlier would have made no difference; it was a lethal tumor that was going to kill him no matter what. 

That put us on a sharp collision course. To counter this, we had to find a credible expert oncology physician, especially an expert on liver cancer. 

Meanwhile, our client was slipping away. I remember visiting him in hospice. He had lost weight and grown pale. His voice and movements were weak. There was very little time left for him. All I could do was assure him that we would do everything we could to win an award for his widow and see to it that justice was done.

Keep in mind our client was in his mid-60s and retired. His wife was younger and had a job, so she was not financially dependent on him. Thus there was no economic loss in this case. Any award would be mostly for his pain and suffering.

We ultimately found a doctor at John Hopkins Hospital in Baltimore.  Based on his reading of the C-scan, he estimated our client would have had a 70% chance of survival had the tumor been removed right away. Our expert’s opinion was based on timing. The earlier the intervention, the more likely his survival. 

Armed with this information, we could strongly argue that the failure to communicate the presence of cancer caused serious harm and suffering to our client that could have been averted. The hospital had breached its duty to inform him of his illness, which more than likely doomed him. 

The case never went to trial. In fact, we never even got to the point of pre-trial discovery or depositions. Once we revealed to the defense the credentials of our expert witness and his likely testimony, the hospital entered mediation. The case was settled for $3.4 million. 

Turns out, the hospital’s decision to settle quickly and for a large amount was due in part to the same reason they chose not to appeal the earlier Statute of Limitations ruling. St. Peter’s Hospital had just built a new oncology wing and was advertising itself as the hospital of choice for cancer treatment. If the hospital had brought the Statute of Limitations ruling to an appeals court, the judges would have written a learned piece on the issue. 

Regardless of the outcome of the court’s decision, there was a high risk of this ruling getting noticed by court reporters, and thus getting coverage in the media. The hospital was desperate to keep the case out of the spotlight to avoid harming its reputation. An outsize award to the widow was the outcome.