Last month the appellate court covering Manhattan upheld a trial court Judge who dismissed a wrongful death action against an internist - AFTER a jury found in favor of the patient's family. The jury determined that the internist failed to timely diagnose gastric cancer and instead attributed the patient's complaints to acid reflux and hiatal hernia. The internist treated the patient according to the plan of a gastroenterologist he consulted who recommended acid reducers and antibiotics. It wasn't until the patient's complaints increased that the internist referred the patient for further testing some 5 months later that led to a diagnosis of stage 4 gastric cancer.
The Appellate Court found that the patient's expert on which the jury relied was too speculative on whether the gastric cancer was indeed present, detectable and treatable. This expert neglected to explain what test would have revealed the gastric cancer and when. As per the Appellate Court, there was insufficient expert testimony on whether earlier treatment would have cured the cancer. 2017 WL 4781268