Bennett Rose underwent three colonoscopies – on January 3, 2003, December 14, 2006 and October 11 2007, each indicating the presence of polyps (which were removed), none indicating any malignancy or cancer. About two months after the third test, though, Mr. Rose, then 72 years old, started feeling unusually weak and tired. He was diagnosed with anemia (very low hemoglobin), transfused in the hospital and he started feeling better.
The anemia returned, though, and a repeat colonoscopy on April 28, 2008 revealed a large eight centimeter cancerous tumor in the ascending colon which had metastasized and spread to his liver. He was diagnosed with cecal carcinoma which caused his death on July 15, 2009.
On March 26, 2013, in the ensuing medical malpractice wrongful death case, a Nassau County jury found that the gastroenterologist who performed the three colonoscopies had departed from accepted medical practice by failing to observe the tumor during the colonoscopy on October 11, 2007. The jurors then awarded damages in the sum of $700,000 ($500,000 for decedent’s pre-death conscious pain and suffering and $200,000 for Mr. Rose’s wife’s loss of services – each for the 15 month period from 4/28/08 to 7/15/09).
In Rose v. Zinberg (2d Dept. 2015), both the liability and damages verdicts have been affirmed.
Here are some of the damages details, none of which are discussed in the court’s decision:
- fear of impending death upon diagnosis of metastasis
- surgery on May 6, 2008 – laparoscopic partial colectomy and removal of the terminal ileum with ileocolostomy, along with removal of a tumor
- 29 chemotherapy treatments with side effects including fingertips and toes neuropathy, blunted taste, trouble sleeping and a loss of 35 pounds
- loss of performance status
- diminished choices as to palliative treatment
- advancement of metastatic disease, hastening of death and loss of quality of life
- hospitalized final 10 days before death
While plaintiff’s medical expert conceded that by October 11, 2007 (the date the jury found that malpractice occurred) Mr. Rose’s cancer had already spread and that there was no cure, he explained “performance status” and testified that had the cancer been caught six months earlier, Mr. Rose’s overall condition would have been better, the cancer would not have grown as fast, his quality of life would have been better and he could have had more, better and less sickening treatment.
The defendant argued that plaintiff’s expert’s testimony was conclusory and speculative and that there was insufficient proof that Mr. Rose suffered any injury separate and apart from his cancer itself which was proximately related to the six month delay in diagnosis.
Mrs. Rose testified that during her husband’s final 15 months he depended upon her and couldn’t do things in the house such as empty the garbage and walk the dog so she “took over whatever had to be done.” He did, though, work in his nail polish manufacturing business with his wife every day until the last 10 days of his life.
- In his closing argument, plaintiff’s attorney stated as to damages: “I can only tell you that this case is certainly a mid six-figure, possibly even low seven figure number, depending on how people feel about compensation for pain and suffering.” Defense counsel did not suggest any figures, instead simply arguing that there was no malpractice.
- After the judge charged the jury, they deliberated for several hours before sending out a note asking if one of the jurors could “abstain from fixing a monetary amount.” They returned their 5-1 verdict 45 minutes later.
- The defendant sought leave to appeal to New York’s highest court, mainly arguing that plaintiff had failed to prove proximate cause in addition to the lack of evidence of consequential damages. The motion was denied.