Second Defense Verdict Obtained in New York County

Marc Hyman recently won a second defense verdict in a case concerning an alleged failure to timely diagnose a pelvic granular cell tumor in a 45-year-old woman by our client, a gynecologic oncologist.

A first defense verdict in 2006 was vacated on plaintiff’s appeal to New York State’s highest court, the Court of Appeals.

The damages alleged included the need for pre-operative radiation treatment and a more extensive resection resulting in radiation damage, incontinence, loss of vaginal sensation and disfigurement, emotional distress and compromise of the marital relationship.

Experts in gynecologic oncology, tumor surgery, musculoskeletal radiology and pathology were called to testify at trial, as was our client. Demonstrative evidence used to educate the jury included anatomic drawings, CT scans, MRI studies, and photographs of the pathology tissue obtained from multiple biopsies of the tumor and from the resected tumor.

We successfully argued that the care provided by our client was fully in accord with accepted standards of care, that he was not responsible for the alleged period of delayed diagnosis, and that the decision to radiate this tumor by subsequent treating physicians and the extent of the surgery needed to remove it would have been the same even with an earlier diagnosis because this was a very slow-growing tumor that did not increase significantly in size over the period of alleged delay.

The defense verdict obtained in 2006 was vacated by the trial court because of its own acknowledged failure to grant plaintiff’s request to poll the jury following the unanimous verdict. We appealed and our Appellate Partner Dan Ratner persuaded the Appellate Division, First Department to reinstatement the defense verdict, arguing successfully that the failure to poll the jury in these circumstances was harmless error. He emphasized the strength of the defense case and the inherent internal consistency and reliability of the verdict given that each juror signed his/her name after each juror interrogatory on the verdict sheet. Unfortunately, the Court of Appeals reversed and ordered an new trial, citing 200 years of New York State jurisprudence establishing an “absolute” common law right to jury polling that it determined was not subject to harmless error analysis.

The defense verdict in the re-trial was returned in November, 2009.