On July 7, 2017 a New York Appellate Court reinstated a medical malpractice - wrongful death suit against a gastroenterologist that had been dismissed by a lower court. This means the patient's family get to have their case decided by a jury. The undisputed facts were that a work up of the patient's abdominal pain and nausea revealed a "small" pancreatic cyst. The patient, age 77, had a family history of pancreatic cancer. The patient was worried and opted to undergo an endoscopic ultrasound procedure (EUS)  to investigate the cyst, rather than the alternative of monitoring the small cyst with serial imaging studies. The gastroenterologist conceded that he inadvertently lacerated the patient's pharynx during the EUS and that she died as a result 30 days later.

The physician argued that the case should be dismissed because everything he did during the EUS was within the standard of care and unfortunately the patient suffered one of those unusual risks which include death. The Appellate Court found that the plaintiff's expert raised sufficient issues which should only be decided by a jury (think constitutional right to trial by jury). The patient's expert swore that: 1) the EUS (with its attendent risks) was not an acceptable procedure given the small size of the asymptomatic cyst; 2) the only medically acceptable option was to monitor the cyst with serial Cat scans or ultra sound studies; and, 3), the laceration of the pharynx only occurs when the doctor performs the EUS both "wrongly and dangerously". Moyer v Roy, M.D. 2017 WL 2884513