Physician’s Failure to Diagnose Rare Cancer Results in $825,000 Award

Case Overview

Case Name: Dante Nemorin and Rose Nemorin v. Saroj Gulati and Queens-Long Island Medical Group PC

Case Type:

• Wrongful Death – Survival Damages
• Medical Malpractice – Failure to Test; Cancer Diagnosis; Failure to Diagnose

Injury: Death

Plaintiff Attorney(s): Laurence M. Deutsch; Laurence M. Deutsch Law Firm P.C., trial counsel to Steven E. North P.C.

Defense Attorney(s): Michael T. Ivone; Ivone, Devine & Jensen L.L.P.

Case Outcome: Verdict-Plaintiff

Award Amount: $875,000.00

Actual Award: $825,000.00

What Happened?

Dante Nemorin, a 50-year-old janitor, went to the Garden City office of Queens-Long Island Medical Group in June 1999. Nemorin was experiencing pain in the right side of his abdomen and groin as well as his right hip. He then returned three more times for help with these continuing pains over the course of about two months. During this time, his primary physician at the Medical Group, Saroj Gulati, evaluated Nemorin twice.

In October 1999, a sonography scanned Nemorin’s bladder and kidneys, but the results ended up being inconclusive. Dr. Gulati then told the patient that kidney stones caused his pain. Gulati continued to evaluate and treat Nemorin for another 10 months. Gulati’s records indicated that the patient had not reported any further pain. Then, on August 7, 2000, Nemorin told the doctor that he felt a “pulling sensation” in his genital area.

Different Perspective

Nemorin then decided to seek a second opinion and went to see Dr. Jean Claude Jean on June 18, 2001. At this point, Nemorin was experiencing excruciating pain that seemed to start at his hips and thighs. Dr. Jean ordered a computerized tomography (CT) scan. This tool takes X-rays from different angles around the area of concern. Computer processing of the X-rays then creates cross-sectional images, or slices, of the bones, blood vessels, and soft tissues. Nemorin’s CT scan showed an enlargement embedded in the lower back part of his psoas muscles. The psoas is a long, deep muscle that connects the torso and the lower body to enable hip flexion.

Nine days after the CT scan, surgeons determined that Nemorin’s psoas had a 15-centimeter retroperitoneal liposarcoma in it. Unfortunately for Nemorin, this is a rare and highly malignant type of tumor. Researchers say that nonspecific symptoms make diagnoses very difficult. Oftentimes, the tumors are quite large when finally found.

Believing that Dr. Gulati should have diagnosed his cancer earlier, Nemorin filed a lawsuit against Dr. Gulati and the Queens-Long Island Medical Group. However, Nemorin died after filing his lawsuit. His wife, Rosa, administratrix of his estate continued the lawsuit concerning the physician’s failure to diagnose.

Allegations and Testimony

In the lawsuit, the estate asserted that Dr. Gulati never made an adequate diagnosis or explained why Dante Nemorin was experiencing pain. In the plaintiffs’ view, Gulati should have viewed Dante’s complaints as persistent, stemming from his similar complaints about pain located in the same area of his body.

The defendants disagreed, stating that Nemorin’s complaints in his earliest visits were unrelated to his later complaints. Dr. Gulati maintained that Dante’s October 1999 pain was explainable as presumed kidney stones.

Before he passed away, Nemorin was able to testify in the case concerning the physician’s alleged failure to diagnose. He insisted that he had asked for an MRI study given his persistent complaints of pain. Instead, Gulati declined to order an MRI, saying that Dante’s symptoms were psychological. Dr. Gulati denied that Nemorin ever requested an MRI. Moreover, she stated that she did not tell him that his physical complaints were psychological. She added that after October 1999, Nemorin never complained of abdominal pain.

Who Won the Case?

After a two-week trial, the jury promptly delivered a unanimous verdict for the plaintiffs. The jury found that the defendants were liable for Nemorin’s injuries and also awarded the plaintiffs $875,000. However, the parties later agreed to an $825,000 settlement.

The $875,000 award broke down as follows:

For the Estate of Dante Nemorin:

• $250,000 personal injury award for past pain and suffering
• $50,000 personal injury award for past economic loss for Rose
• $187,500 personal injury award for future economic loss for Rose
• $25,000 personal injury award for past economic loss for Darnelle
• $93,750 personal injury award for future economic loss for Darnelle
• $25,000 personal injury award for past economic loss for Doreen
• $93,750 personal injury award for future economic loss for Doreen

For Rose Nemorin:

• $150,000 personal injury award for past loss of services

Expert Specialities

Both the plaintiffs and the defendants retained expert witnesses in:

• Internal medicine
• Radiology
• Oncology

The Plaintiffs’ Experts

Internal Medicine Expert

An internal-medicine expert stated at trial that not ordering a CT scan for persistent, unexplained abdominal pain was a standard practice departure for Dr. Gulati. Gulati countered that it would have been a departure not to order a CT scan if a doctor saw the early and later patient complaints as connected. In her view, Nemorin’s complaints were not of the same character.

Radiology Expert

A radiology expert for the estate testified that if a CT scan had been performed on Nemorin in late 1999 or early 2000 after the initial doctor visits, it was likely the scan would have shown a mass greater than 1.5 centimeters in dimension.

Oncology Expert

The estate’s oncology expert testified that Nemorin’s tumor was likely several centimeters in dimension and consistent with his symptoms. He also testified that if the tumor were diagnosed when he presented to Gulati, Nemorin would have had a probability of survival.

The Defendants’ Experts

Internal Medicine Expert

The defendants’ internal-medicine expert testified that Dante Nemorin’s complaints about his condition differed over time. As such, the expert said Dr. Gulati should not have regarded them as connected or persistent. This expert also opined that the lab work showing that Nemorin’s urine contained red blood cells was a sufficient basis for ascribing his October 1999 complaints to kidney stones.

The defendants’ internal-medicine expert also testified that a failure to suspect the presence of retroperitoneal sarcoma would not constitute malpractice because the condition is so rare. On the contrary, the plaintiffs’ counsel argued that abdominal masses, in general, are not rare. Therefore, a physician should consider a possible mass when a patient has persistent unexplained abdominal complaints.

Radiology Expert

The defense’s radiology expert asserted that even if a CT had been done when Nemorin claims it should have been done, a low-density mass would have been difficult to see with a non-contrast CT. He also pointed out that even the CT studies performed in mid-2002 did not show a definitive mass.

However, during cross-examination, the defense radiology expert made a few concessions. He conceded that at least some images in the later CT scans showed good differentiation from surrounding tissue. He agreed that a radiologist has the duty to read all such images. Doing so should have resulted in some well-defined images of the mass compared to normal tissue. The expert also conceded that it was common for a diagnosis to be made indirectly from CT studies. This would typically lead to a further inquiry such as a workup or a biopsy and then a diagnosis.

Oncology Expert

The defense’s oncology expert testified when Nemorin presented to Dr. Gulati, his tumor was miniscule. At this time, it was less than 1 centimeter in all dimensions. He added that Nemorin’s symptoms were inconsistent with a tumor big enough for a physician to diagnose. The oncologist observed that physicians commonly diagnose retroperitoneal sarcoma late when the tumor is larger as was Dante’s when physicians found it. By this time, the prognosis of this high-grade tumor is dismal anyway, he said.

Key Takeaways

This case points out the importance of capable expert witnesses and penetrating cross-examination in medical malpractice/wrongful death cases. The defense experts here made strong points about the difficulty of diagnosing this type of tumor early. Yet, a strong cross-examination forced one expert to agree that radiologists must read all the images and that some of the CT images could have shown abnormal tissue, prompting further inquiry. On top of that, the plaintiff’s counsel was able to argue in front of the jury that even if this cancer is rare and hard to diagnose, unexplained persistent abdominal pain should trigger a doctor to consider a possible abdominal mass.