Estate Resolves Medical Malpractice Case After Failure to Diagnose Breast Cancer Causes Death

The plaintiff had been under the care of the defendant physician for two years when, on January 4, 2001, she reported to his office complaining of a lump in her breast. Additionally, since she was a physician, she reported that she had also examined her own lymph nodes, and could palpate the lymph nodes in her left axilla. The defendant OBGYN advised her that these findings were due to the fact that she had recently lost weight, and he advised her to have her next mammography exam as scheduled and report back following the study.

On April 4, 2001, the plaintiff reported back to the defendant indicating that she still felt the lump in her breast, and still felt palpable lymph nodes. This time, the defendant doctor felt the lump, but indicated that the lump was so small that the plaintiff had nothing to worry about. Having been twice told she was over-reacting, the plaintiff followed her doctor's advice.

The plaintiff returned to the doctor five months later, advising the defendant that she was having pain in the area of her nipple for the last week, and she felt the lump and it appeared to have grown. At this point, the OBGYN referred the plaintiff for an ultrasound, which was read as showing a hypoechoic irregular solid nodule corresponding to palpable abnormality in the breast. The findings were said to be suspicious for malignancy and surgical excision was recommended.

During a workup for postoperative chemotherapy, a CT scan revealed that the plaintiff had multiple liver metastasises. Tragically, the plaintiff was diagnosed with terminal metastatic breast cancer. She passed away during the course of the litigation.

Attorneys Amos Gern and John Ratkowitz resolved the case after discovery concluded.

Paper Discovery in Medical Malpractice Cases

Excerpted from: "Medical Malpractice: Making the Most of Pretrial Discovery," New Jersey Law Journal, August 8, 2005, by Amos Gern & John Ratkowitz.


To obtain a comprehensive understanding of your client's medical case, it is essential that you create a narrative time line of your client's treatment records. By organizing relevant physician notes, orders, consults, nurses findings, and the results of diagnostic and laboratory tests in chronological order before filing the suit, you will get a far better understanding of your client's course of treatment than by simply reviewing a hospital or other medical record, in the fortuitous manner it is presented.

Attorneys must insist on timely service of defendant's interrogatory answers. It is common practice to receive incomplete answers from the defendant to uniform interrogatories mandated by the court rules. A demand for more specific answers to interrogatories will invariably be required, followed by a formal motion addressed to the court. Even the most diligent attorney will find it takes a minimum of four to six months before responsive answers are provided.

It is common for defense counsel to interpose objections to uniform interrogatory questions required by the court rules, to assert objections such as the need for clarification of the interrogatory, an assertion that the interrogatory calls for a legal conclusion, or a claim that the interrogatory is unduly broad and overly burdensome. None of these objections have any merit in view of the fact that R. 4:17-1(b)4 requires that "every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered."

Uniform Interrogatory Form C(3), question 1, seeks the identity of every person in the vicinity of the alleged occurrence. Defense counsel routinely attempts to avoid giving an answer to this question by taking the position that it is unclear what the "alleged occurrence" is. While such an answer is improper under any circumstances, it can be even further avoided by plaintiff's counsel providing detailed allegations in response to uniform interrogatory form A(l), question number 7, which seeks plaintiff's contentions as to the negligence of the defendants.

Uniform Interrogatory Form C(3), questions 2 and 3, seek detailed narratives from the defendant physician regarding the care provided to the plaintiff. Interrogatory 9 seeks a description of defendant's informed consent interview, and interrogatory 15 requires an explanation from the physician defendant as to why consultations were ordered and requests the reports received by the defendant from such consults. Since it is common for physicians to recall details about the care provided to a plaintiff that goes well beyond what has been written in the defendant's medical chart, or to claim that what has been written in the medical chart is merely a summary, plaintiff's counsel must reject a defense response which generically references the medical records. R. 4:17-4(a) requires interrogatory answers to be furnished "separately, fully and responsively." Id. It is the defendant's obligation to collect information and supply it in the form required by the rule, and defense counsel should not be permitted to allow their clients to cleverly avoid the rule. Seiden v. Allen, 135 N.J. Super. 253, 256 (Ch. Div. 1975).

Uniform Interrogatory Form C(3), question 4 requires the defendant to attach a complete curriculum vitae. In the first instance, having this information will avoid wasting valuable deposition time and costs to learn the details of a defendant's professional background and education. Moreover, and more importantly, the professional boards and societies to which a defendant belongs often publish standards and practice publications that will serve to corroborate your expert's opinions about such standards and eliminate much of the debate on these issues at trial.

Uniform Interrogatory number 6 seeks complete information about past malpractice suits. Since R. 4:17-4 requires that responses be furnished by supplying all information available to the party, the party's agents, employees and attorneys, a defendant may not simply avoid providing a responsive answer by claiming a failure to have such details committed to memory. This information is clearly available to the doctor and his counsel.  Uniform Interrogatory number 11 seeks information about peer review materials. The ancillary information concerning peer review meetings mandated by this interrogatory is not subject to a claim of privilege. Whether a particular document resulting from a peer review investigation is privileged depends on its substance and the availability of the information contained in the document from other sources. See Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). Defendants should not be permitted to block all inquiry into this area of evidence by asserting a blanket objection to a question which has been mandated by the court rules.

Demands for documents pursuant to R. 4:18-1 serve as an excellent tool to buttress your expert's position regarding the standard of care from which the defendant deviated. If a defendant physician is employed by a group or organization, employment contracts or shareholder agreements executed by members of such organizations often require the physician to practice medicine in accordance with the standards of a particular professional society. Such contracts and agreements may also delineate the defendant's responsibilities with respect to rounding, being on call, supervising physician assistants and residents, and interacting with other members of the group. While some of this information may be confidential in nature, case law clearly establishes that the information must be disclosed if relevant. Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co. of Maryland, 81 N.J. Super. 529 (Law Div. 1963); Gureghian v. Hackensack Hospital, 109 N.J. Super. 143, 148 (Law Div. 1970).

It is also not uncommon for physician groups to generate triage protocols regarding  communications between patients and the office relevant to potential emergencies by telephone or otherwise. If a hospital is a defendant in a case, resident codes of conduct, resident/hospital employment contracts, medical staff bylaws, medical staff rules and regulations, coding booklets and hospital protocols, are all extremely useful in supporting plaintiff's expert testimony on applicable standards. These materials become extremely useful where there are multiple defendants in the case, all of whom are disclaiming responsibility for patient monitoring, yet, nevertheless, fail to implicate one another.

$210,000 Recovery for Woman Sustaining Trimalleolar Fracture of the Left Ankle After Fall.

On September 8, 2001, the plaintiff stood up to leave an outdoor screen house that was on the property of the defendants. After taking a step or two she immediately tripped and fell to the ground. She suffered a comminuted trimalleolar fracture of the left ankle with extensive ligament damage. Closed reduction was attempted on September 8, 2001, but failed. Consequently, open reduction surgery was performed.

Following her discharge from Raritan Bay Medical Center, the plaintiff remained under the care of her orthopedic surgeon. Because of the severity of her injuries, the plaintiff was unable to begin physical therapy until January 2002. Even then, she remained in an air cast splint and still had to utilize crutches to ambulate. The plaintiff was only able to begin weaning herself off of crutches in February 2002, 5 months after the accident. When she did this, she suffered periodic setbacks in her progress. She remained in physical therapy until May 2002, 9 months following the accident.

The plaintiff last saw her orthopedist more than a year and a half after the accident. At that time, she was still complaining of stiffness and loss of range of motion in her left foot and ankle. On examination, loss of motion and crepitus was noted in the left ankle. The plaintiff was advised that part of the injury to her left ankle was permanent in nature and would simply not heal. Also, the plaintiff was advised that she would need to have the hardware that was placed in her left ankle during the surgery removed in a second surgery.

The case went through Superior Court Mandatory Non-Binding Arbitration and the plaintiff received an award of $100,000. Attorney John Ratkowitz filed a trial de novo and agreed to voluntary binding arbitration and within weeks was able to secure an award of $210,000.

Heart Surgery Patient Who Lost Vision Recovers Confidential Malpractice Settlement

It was the contention of the plaintiff that he was inadequately monitored following heart surgery. Specifically, the plaintiff maintained that because his operating heart surgeon left town shortly after the surgery, there was no designated attending physician monitoring his care postoperatively. As a result, when the plaintiff's hemoglobin and hematocrit levels dropped steadily, this fact went unnoticed, resulting in significant anemia. Simultaneously, the plaintiff developed congestive heart failure which further compromised his oxygen carrying capacity.

Six days following his bypass surgery, the plaintiff was walking in the hallway at the hospital, as he was encouraged to do this by medical staff. At the time he was markedly anemic with reduction in oxygen carrying capacity for the supply of blood to his body tissues, he had a low mean arterial pressure during the day, and had also received a dose of a potent beta adrenergic blocking agent. He had atelectasis of his left lower lobe and auscultatory findings of rhonchi. As he was walking in the corridor, he noted a decrease in his vision which he described as cloudiness in his eyes. He was dizzy and had a headache. He complained of blurred vision and black spots in front of his eyes, which progressed to the point of almost complete blindness.

It was the position of the plaintiff's expert that the group system used by the defendants to provide postoperative care to the plaintiff resulted in a complete lack of continuity of care, a lack of thorough knowledge of the patient, the untimely acquisition of results of laboratory studies and the failure to follow up on postoperative orders, and that all of these things were below accepted standards of medical care and contributed to the plaintiff's visual deficit.

The case involved multiple medical experts from five different states. Attorneys Amos Gern and John Ratkowitz were able to settle the case after the depositions of the experts concluded.

Comsetic Surgeon Settles Resolves Negligent Case for $145,000 After Failing to Provide Informed Consent

The plaintiff visited the defendant plastic surgeon in order to address what she observed to be sagging in her breasts. Rather than recommending a simple mastopexy procedure, the defendant physician recommended that the plaintiff have breast augmentation with implants and a periareolar mastopexy. Ultimately, the plaintiff required further surgery because the periareolar breast augmentation and mastopexy failed to solve her problems. Indeed, the plaintiff contended that these procedures made her condition worse. She was also left with significant scarring, ptosis and capsular contraction.

The defendant contended that he provided the plaintiff with the appropriate informed consent. The defendant advised that he actually recommended a simple mastopexy procedure, but the plaintiff refused to follow this recommendation.

The medical chart that the defendant produced during discovery in the course of the litigation supported his factual position. Nevertheless, the medical chart that was produced by his office before the lawsuit was filed supported the plaintiff's contentions.

John Ratkowitz was able to settle the case soon after the defendant was deposed and the two sets of medical records were revealed.

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Retinal Surgeon Settles Case During Trial for Negligent Surgery

On March 3, 1998, the plaintiff reported to his regular ophthalmologist with an emergency that had begun four days earlier when he developed large floaters in his left eye accompanied by flashing and limited visual acuity. He further complained of having developed a black spot in the left temporal periphery of the left eye which began on March 2, 1998 and continued. The ophthalmologist examined the eye and diagnosed a retinal detachment, which he drew in a fundus drawing of the eye (clock-like) as encompassing an area of 2 clock hours. He also found retinal folds and a possible retinal tear. As a result of his findings that evening, the ophthalmologist immediately called the defendant retinal specialist in his group and advised her of his findings. An appointment was arranged for the very next morning (March 4, 1998 at 9:00 a.m.), and according to the plaintiff, he was advised by his ophthalmologist to prepare himself for emergency retinal surgery. As a result, the plaintiff, accompanied by his wife, consulted the retinal specialist the morning of March 4, 1998 . He had intentionally not eaten so that emergency surgery could take place. By the time he was examined again, his retinal detachment that had more than doubled in size and now encompassed approximately 5 clock hours on the fundus drawing made by the defendant. She also found a 2 clock hour retinal tear with a rolled posterior edge. At the same time, she noted lattice degeneration (a thinning of the retina) in the left eye and made a note that she would have to examine the right eye in due course to determine if a similar condition existed in that eye. In spite of the severe risk of further deterioration to the left eye, the defendant did not perform surgery on March 4, 1998, and instead arranged for surgery the following day, which did not begin until after 2 p.m. Although the defendant alleged that no hospital operative suite was available to do the surgery on March 4, 1998, testimony would have been presented by the plaintiff from a former employee of the hospital that one was available on March 4, 1998. Also, written procedures were in place to allow a physician with an emergency patient to bump other surgeries.

The defendant retinal specialist had determined that plaintiff required a scleral buckle procedure to repair the retinal tear and the retinal detachment in the left eye. This procedure, which also involves the freezing of the retinal tissue with a welding type of procedure to repair the tear, entails the wrapping of a silicone band around the eye to force the retina back against the back of the eye so it can heal. Unfortunately, prior to the procedure beginning, the defendant examined the left eye and found additional pathology: the retinal tear had expanded to a "giant" tear encompassing a full quadrant of the eye, blood was found in the vitreous of the eye, and a second retinal tear had developed in the upper portion of the same eye. This progression of symptoms and pathology indicated severe vitreous traction causing posterior vitreous detachment which was damaging the retina, and could no longer be remedied by a simple scleral buckle procedure. Rather, at that point, the plaintiff required a vitrectomy to remove the entire vitreous in the eye, and replace it with a fluid or a gas, which holds the retina in place, after the retinal tears are repaired, and alleviates the tractional forces pulling at the retina which cause further injury. This procedure should have been combined with the scleral buckle.

In the days following the surgery, the plaintiff continued to have severe vitreous hemorrhage to the point where the retina could not be adequately examined without ultrasound. It was not until March 20, 1998 that the defendant determined that the vitrectomy was necessary to alleviate the plaintiff's conditions, at which point surgery was scheduled for March 25, 1998. Unfortunately, by that time, the plaintiff had developed a total retinal detachment involving all 12 clock hours of the fundus, and now was detached at the macula, which is the center of fine detailed vision in the eye. Further, the second retinal tear which had been found during the March 5, 1998 surgery at the top of the left eye, had now also become a giant retinal tear. Following the March 25, 1998 surgery, the plaintiff continued to deteriorate and developed a complete deterioration of the eye which caused it to shrink and become useless. A year later, the eye was surgically removed and plaintiff now has a prosthetic eye on the left side.

As previously noted, the defendant also failed to examine the right eye during plaintiff's first visit on March 4, 1998. This failure continued for several months, and at no time was the right eye examined or treated prophylactically for probable lattice degeneration, a thinning of the retina. Plaintiff's contended that this thinning was in the superior, or upper, portion of the eye, which went on to suffer a retinal detachment in March of 2000, two years later. This resulted in multiple surgeries on the right eye, which were only modestly successful and have left that eye legally blind.

The defendant contested these allegations and argued that the delay in performing surgery was not meaningful under the circumstances. Further, it was argued that the determination to perform a scleral buckle procedure alone, without a vitrectomy, was a matter of medical judgment, which was justified under the circumstances. The defendant further argued that although it was negligent to fail to examine the right eye both initially and in the months of treatment thereafter, the retinal detachment sustained in the right eye was unrelated to that negligence and not her fault. In support thereof, the defendant would have argued that the new retinal surgeon who treated the right eye performed the combination of a scleral buckle and vitrectomy (as plaintiff contends had been necessary to treat the left eye), and nevertheless, complications resulted in substantial loss of plaintiff's vision in that eye as well. Lastly, the defendant would have presented a strong Scafidi defense seeking credit for plaintiff's pre-existing conditions in both eyes, to the extent they were not the defendant's fault.

Attorneys Amos Gern and John Ratkowitz resolved the case after two days of trial.

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Retinal Surgeon agrees to $600,000 Settlement After Two Days of Trial after Plaintiff Suffers Vision Loss After Eye Surgery

On March 3, 1998, the plaintiff reported to his regular ophthalmologist with an emergency that had begun four days earlier when he developed large floaters in his left eye accompanied by flashing and limited visual acuity. He further complained of having developed a black spot in the left temporal periphery of the left eye which began on March 2, 1998 and continued. The ophthalmologist examined the eye and diagnosed a retinal detachment, which he drew in a fundus drawing of the eye (clock-like) as encompassing an area of 2 clock hours. He also found retinal folds and a possible retinal tear. As a result of his findings that evening, the ophthalmologist immediately called the defendant retinal specialist in his group and advised her of his findings. An appointment was arranged for the very next morning (March 4, 1998 at 9:00 a.m.), and according to the plaintiff, he was advised by his ophthalmologist to prepare himself for emergency retinal surgery. As a result, the plaintiff, accompanied by his wife, consulted the retinal specialist the morning of March 4, 1998 . He had intentionally not eaten so that emergency surgery could take place. By the time he was examined again, his retinal detachment that had more than doubled in size and now encompassed approximately 5 clock hours on the fundus drawing made by the defendant. She also found a 2 clock hour retinal tear with a rolled posterior edge. At the same time, she noted lattice degeneration (a thinning of the retina) in the left eye and made a note that she would have to examine the right eye in due course to determine if a similar condition existed in that eye. In spite of the severe risk of further deterioration to the left eye, the defendant did not perform surgery on March 4, 1998, and instead arranged for surgery the following day, which did not begin until after 2 p.m. Although the defendant alleged that no hospital operative suite was available to do the surgery on March 4, 1998, testimony would have been presented by the plaintiff from a former employee of the hospital that one was available on March 4, 1998. Also, written procedures were in place to allow a physician with an emergency patient to bump other surgeries.

The defendant retinal specialist had determined that plaintiff required a scleral buckle procedure to repair the retinal tear and the retinal detachment in the left eye. This procedure, which also involves the freezing of the retinal tissue with a welding type of procedure to repair the tear, entails the wrapping of a silicone band around the eye to force the retina back against the back of the eye so it can heal. Unfortunately, prior to the procedure beginning, the defendant examined the left eye and found additional pathology: the retinal tear had expanded to a "giant" tear encompassing a full quadrant of the eye, blood was found in the vitreous of the eye, and a second retinal tear had developed in the upper portion of the same eye. This progression of symptoms and pathology indicated severe vitreous traction causing posterior vitreous detachment which was damaging the retina, and could no longer be remedied by a simple scleral buckle procedure. Rather, at that point, the plaintiff required a vitrectomy to remove the entire vitreous in the eye, and replace it with a fluid or a gas, which holds the retina in place, after the retinal tears are repaired, and alleviates the tractional forces pulling at the retina which cause further injury. This procedure should have been combined with the scleral buckle.

In the days following the surgery, the plaintiff continued to have severe vitreous hemorrhage to the point where the retina could not be adequately examined without ultrasound. It was not until March 20, 1998 that the defendant determined that the vitrectomy was necessary to alleviate the plaintiff's conditions, at which point surgery was scheduled for March 25, 1998. Unfortunately, by that time, the plaintiff had developed a total retinal detachment involving all 12 clock hours of the fundus, and now was detached at the macula, which is the center of fine detailed vision in the eye. Further, the second retinal tear which had been found during the March 5, 1998 surgery at the top of the left eye, had now also become a giant retinal tear. Following the March 25, 1998 surgery, the plaintiff continued to deteriorate and developed a complete deterioration of the eye which caused it to shrink and become useless. A year later, the eye was surgically removed and plaintiff now has a prosthetic eye on the left side.

As previously noted, the defendant also failed to examine the right eye during plaintiff's first visit on March 4, 1998. This failure continued for several months, and at no time was the right eye examined or treated prophylactically for probable lattice degeneration, a thinning of the retina. Plaintiff's contended that this thinning was in the superior, or upper, portion of the eye, which went on to suffer a retinal detachment in March of 2000, two years later. This resulted in multiple surgeries on the right eye, which were only modestly successful and have left that eye legally blind.

The defendant contested these allegations and argued that the delay in performing surgery was not meaningful under the circumstances. Further, it was argued that the determination to perform a scleral buckle procedure alone, without a vitrectomy, was a matter of medical judgment, which was justified under the circumstances. The defendant further argued that although it was negligent to fail to examine the right eye both initially and in the months of treatment thereafter, the retinal detachment sustained in the right eye was unrelated to that negligence and not her fault. In support thereof, the defendant would have argued that the new retinal surgeon who treated the right eye performed the combination of a scleral buckle and vitrectomy (as plaintiff contends had been necessary to treat the left eye), and nevertheless, complications resulted in substantial loss of plaintiff's vision in that eye as well. Lastly, the defendant would have presented a strong Scafidi defense seeking credit for plaintiff's pre-existing conditions in both eyes, to the extent they were not the defendant's fault.

Attorneys Amos Gern and John Ratkowitz resolved the case after two days of trial.