August 25, 2011

Gerry Toner successfully defended a Louisville gynecologist in a medical malpractice action in Jefferson (Ky.) Circuit Court.  The Plaintiff claimed that the physician failed to timely diagnose her endometrial cancer during the summer and autumn of 2006.  The Plaintiff alleged that the physician should have performed a D&C biopsy as a stand alone procedure, which she contended would have revealed the presence of cancer, rather than recommend a hysterectomy with frozen section biopsy.  Despite consenting to a hysterectomy and biopsy in September 2006, the Plaintiff sought other treatment before finally undergoing surgery in December 2007, at which time the physician found Stage IV cancer.   The Plaintiff sought approximately $5 million in damages.  Toner defended the physician by submitting medical proof that cancer was low on the differential diagnosis, that the patient needed a hysterectomy to treat known benign conditions, and that the patient refused to undergo a hysterectomy despite her doctor’s recommendations.  The defense also submitted medical evidence that a D&C biopsy performed in 2006 would likely have not revealed the presence of cancer.  A hysterectomy is the only procedure that could have and did detect cancer, but the Plaintiff delayed surgery by 15 months when she sought alternative treatment options.  Defense experts included a gynecologist from Orlando, Florida, a gynecologic oncologist from Cincinnati, Ohio, and an oncologist and pathologist from Louisville, Kentucky.  The jury agreed with the defense and found in the physician’s favor.