Senior Partner William Brady and Partner Gregory Cascino previously moved for summary judgment and dismissal of Plaintiff’s claims against MCB’s clients – a top national hospital, as well as her treating otolaryngologist, and oral and maxillofacial surgeon – alleging a failure to properly treat her for osteomyelitis in her mandible. In support, MCB submitted an affirmation from an expert otolaryngologist/head and neck surgeon who explained that Plaintiff actually had a very rare/atypical form of cancer in her mandible that was not definitively diagnosed while she was treated by our clients. This underlying cancer led to bone destruction, necrosis and a lack of blood flow, which caused the mandible to become more susceptible to an overlying bacterial infection.
The surgical specimens excised by our clients were reviewed by 3 different pathologists at top national hospitals (including our client); 2 of which felt she had a benign condition and 1 of which felt she had cancer. Plaintiff’s treaters were also unable to render a definitive diagnosis, even after she transferred her care to another hospital. After over a year of treatment at this second hospital the clinicians there realized she was not responding to antibiotics, which indicated she had another underlying problem. Accordingly the pathologists re-reviewed all the prior samples that were originally thought to be related to osteomyelitis, and changed their diagnosis to a malignancy which had existed since the start of her treatment at the second hospital. Plaintiff then started receiving cancer treatment and improved.
As explained by our expert, Plaintiff had cancer in her mandible from the beginning of her treatment by our clients, but because it was very difficult for the pathologists to definitively diagnose, the clinicians appropriately treated her as if she had osteomyelitis, which was the other most likely cause of bone necrosis. Any presumed osteomyelitis was caused by the underlying cancer, and could not have been addressed until the cancer was diagnosed and treated. Since this cancer diagnosis and treatment did not occur until over a year after Plaintiff’s treatment by our clients, they could not have caused her claimed injuries.
The Supreme Court denied the motion and an appeal was taken by MCB. The First Department unanimously reversed and dismissed all claims, noting that we made our initial showing of entitlement to summary judgment by demonstrating that our client’s treatment was within the standard of care, and that any difficulties were caused by the underlying cancer. The First Department also found that Plaintiff’s expert failed to sufficiently address this opinion, and indeed took the position that Plaintiff never had cancer; a fact which was contradicted by the record. Thus, Plaintiff did not rebut our prima facie showing of entitlement to summary judgment.