On July 6, 2022, the Appellate Division, Second Department vacated a Nassau County jury verdict of $2,717,303 awarded to a family suing a pulmonologist for wrongful death of a 63 year old woman. The pulmonologist had performed a bronchoscopy on the patient which was negative for any cancer. Approximately two years later the patient underwent surgery to remove her right lung and the biopsy found lymphoma from which she died one year later. The jury found that the pulmonologist failed to further investigate conflicting CT scan results at the time of the bronchoscopy; and, that the one year delay in diagnosis of cancer diminished the chances of a better outcome than death.

The verdict was set aside and a new trial ordered because the trial Judge prevented the defense attorney from cross-examining plaintiff's expert on whether other consulting physician's were also at fault for failing to recommend additional investigative procedures. Plaintiff's counsel successfully objected to this line of questioning asserting it was beyond the scope of the direct exam and that the defense did not provide expert disclosure in support of this theory. But this line of inquiry is relevant, as explained by the appellate court, because any allocation of a percentage of fault found by the jury, attributable to an unnamed physician may serve to decrease the amount of damages that may be collected from the named defendant physician. Schuster v Dr. Magdi S. Sourour, 2022 WL 2443819