Two RUMC residents and an anesthesiologist were present for the delivery. The plaintiff, the decedent’s husband, testified at his deposition that he also was in the delivery room. The plaintiff testified that two to three weeks before the delivery, Grecco had described the myoma as being the size of a grape, but in the delivery room Grecco described it as the size of a “goddamn grapefruit” and said that he had “never experienced a fibroid growing so large so fast, except from a woman’s metabolism.”
The decedent and her baby were discharged from RUMC on January 13, 2015. On March 31, 2015, Grecco ordered a CT scan and biopsy and performed a Pap smear. The biopsy was performed on April 7, 2015, approximately 12 weeks after the decedent gave birth, and the results of the biopsy revealed cervical cancer. The decedent began treatment at Memorial Sloan Kettering Cancer Center but died on December 7, 2015.
The plaintiff, as the administrator of the decedent’s estate and individually, commenced a New York medical malpractice wrongful death lawsuit to recover damages for medical malpractice and wrongful death against Grecco and his practice, defendant OB/GYN Associates of Staten Island, P.C., and RUMC. The plaintiff alleged in his bill of particulars that RUMC was negligent in failing to timely refer the decedent to a gynecologic oncologist. The plaintiff’s expert opined that RUMC and its staff departed from good and accepted medical practice by failing to obtain the decedent’s entire medical chart, which indicated that she had certain risk factors for cervical cancer, failing to palpate the lesion on the decedent’s cervix during a required cervical exam on admission to the hospital, and failing to order a gynecological oncology consult upon discovering the obstruction that prevented the decedent from delivering her baby vaginally. The plaintiff’s expert further opined that “[w]hen treating cervical cancer, time is of the essence” and, thus, the delay in diagnosing the decedent’s cervical cancer contributed to her death. Thus, the plaintiff’s expert raised triable issues of fact as to whether Grecco’s plan to wait until four to six weeks after delivery to perform a biopsy was so clearly contraindicated by normal practice that ordinary prudence required RUMC’s staff to inquire into the correctness of that plan. In particular, the plaintiff raised triable issues of fact as to whether RUMC’s resident physician should have inquired into the correctness of the plan and referred the decedent for an oncology consult, in light of the evidence that the resident physician was aware that the decedent needed a cesarean section because of the size of the obstruction and was present in the delivery room, where Grecco exclaimed that the myoma had grown to the size of a “goddamn grapefruit” and said that he had “never experienced a fibroid growing so large so fast, except from a woman’s metabolism.”
RUMC moved for summary judgment dismissing the amended complaint insofar as asserted against it. In an order entered February 14, 2020, the Supreme Court granted RUMC’s motion, and the plaintiff appealed.
New York Appellate Court Opinion
The Supreme Court of the State of New York Appellate Division, Second Judicial Department (“New York Appellate Court”) stated in its June 15, 2022 decision “contrary to the Supreme Court’s determination, the affirmation of the plaintiff’s expert, who was board certified by the American Board of Obstetrics and Gynecology, established that the expert was possessed of the requisite skill, training, education, knowledge, or experience to opine on whether the delay in diagnosing the decedent’s cervical cancer proximately caused her death.”
Source Pezulich v Grecco, 2022 NY Slip Op 03912.
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