In New York Medical Malpractice Case related to Breast Cancer, New York Appellate Division, Second Department Reverses Grant of Summary Judgment to Derfendants

In this medical malpractice case the plaintiff was diagnosed with Stage 1 breast cancer in her right breast. She underwent a right breast mastectomy. She had a family history of breast cancer. Seven years later in 2007 she was diagnosed with ovarian cancer. The plaintiffs alleged that, given the plaintiff’s own medical history and that of her paternal family, as well as her father’s Ashkenazi Jewish ethnicity, defendant’s failure to recommend, prior to November 2007, “BRCA” genetic testing or prophylactic surgery removing her ovaries, which could have prevented the onset of her ovarian cancer, constituted medical malpractice. In reversing the Court below and reinstating the complaint the Court held:

“Here, the allegations in the bills of particulars concerning the period from March 2001 through November 2007, when the patient was under defendant’s care, were that defendant departed from the accepted medical practices of that time by failing to recommend “BRCA” genetic testing and “prophylactic oophorectomy or bilateral salpingo-oophorectomy” to the patient, given her personal and family medical history. Since the respondents’ expert failed to provide any information as to what the accepted medical practices were during the period at issue with regard to BRCA genetic testing, and did not refute or even address (see Berkey v Emman, 291 AD2d at 518) the specific allegations regarding the failure to recommend prophylactic oophorectomy or bilateral salpingo-oophorectomy, the respondents did not meet their prima facie burden on the issue of whether there was a departure from accepted medical practices.
Accordingly, the Supreme Court should have denied the respondents’ motion for summary judgment dismissing the complaint insofar as asserted against them.” See: Mancuso v. Friscia, et al., 2013 NY Slip Op 05515.

Our Partner, Howard Hershenhorn headed up the team which handled the case which included Diana Carnemolla, Richard Steigman, who argued the appeal and our late partner, Rhonda Kay. Notably at the time she was writing the appeal, Rhonda knew she had only weeks to live as a result of breast cancer. It is a testament to her courage and fortitude which we shall never forget.