Appellate Court Reinstates Claim Against Gastroenterologist for Death of 77 yr Old Patient

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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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