Estate Claimed Cancer Unnoticed During Drug Trial Study
On Aug. 10, 2000, plaintiff’s decedent Morris Lundy, 56, an insurance broker, was referred to Dr. Eliot Howard Zimbalist’s office to participate in a clinical trial of Interleuken 11, a drug that was being tested as a treatment for Crohn’s disease.In 1995, Lundy had been diagnosed with Crohn’s disease and in 2000 underwent a CT scan of his abdomen prior to seeing Zimbalist, a gastroenterologist performing the trial study of Interleuken 11. The CT scan showed a 1-centimeter lesion on Lundy’s liver that a radiologist diagnosed as being benign. The CT scan report was then given to Zimbalist, who recommended that Lundy undergo a laparotomy and advised that surgery would be the best treatment for his illness. Lundy decided not to undergo the surgery and instead participate in the clinical study.Several times throughout his treatment with Zimbalist, Lundy made complaints of abdominal pain, diarrhea and constipation. Lundy remained in the study until March 11, 2001, when he presented to Maimonides Medical Center, in Brooklyn, with gastrointestinal complaints, including abdominal pain. After being discharged, Zimbalist followed up with Lundy.
Zimbalist decided to withdraw Lundy from the drug trial because of the hospitalization. After finding out that he had been withdrawn from the trial, Lundy returned to Zimbalist on April 24, 2001. At this visit, Zimbalist again recommended surgery and referred Lundy to another doctor. Zimbalist did not see Lundy after that date.
On Aug. 6, 2001, Lundy presented to a Florida hospital and reported increased abdominal symptoms. There he was diagnosed with cancer of the colon with metastasis to the liver. He died one week later.
Lundy’s widow, Yamilee Clermont-Lundy, acting individually and as executrix of the goods, chattels and credits of her husband, sued Zimbalist; Maimonides Medical Center; two of her husband’s prior treating physicians, Drs. Sam Weissman and Moshe Schein; and a prior treating facility, New York Methodist Hospital. The plaintiffs alleged that the defendants failed to diagnose and treat Lundy’s cancer and that these failures constituted medical malpractice.
The action against Weissman, Schein, Maimonides Medical Center and New York Methodist Hospital was discontinued prior to trial. The matter continued against Zimbalist.
Plaintiffs’ counsel claimed that Zimbalist failed to follow up on the abdominal CT scan and failed to treat the lesion that was found on Lundy’s liver. Counsel also contended that Zimbalist failed to appropriately treat and follow up with Lundy when he complained of abdominal pain, diarrhea and constipation. The estate contended that if Lundy’s cancer was diagnosed sooner, it could have been treated. It contended that the delay in diagnosis decreased Lundy’s chance of survival. The estate also claimed that if there was only a single lesion on Lundy’s liver, then it could’ve been effectively treated.
Zimbalist contended that he did not depart from good and accepted medical standards. He argued that he appropriately recommended that Lundy undergo a laparotomy on the first day he saw him, to better investigate his abdominal problems. He claimed that he recommended surgery to Lundy on several occasions, but that Lundy wanted to exhaust all other medical therapies first. He also claimed that the CT scan was appropriately ordered by Lundy’s prior gastroenterologist and that the lesion on Lundy’s liver was diagnosed as being benign by a radiologist. He contended that this report is what was given to him. Zimbalist argued that if Lundy’s cancer had already metastasized to his liver by the time he saw him, there was nothing he could have done to treat him.
Lundy suffered colon cancer that metastasized to his liver. He died Aug. 15, 2001, at age 57.
Lundy’s estate sought recovery of wrongful-death damages that included one year of conscious pain and suffering and damages for Lundy’s 5-year-old daughter’s loss of parental guidance. Lundy’s wife also presented a derivative claim. The plaintiffs sought a total of about $2 million.
The jury rendered a defense verdict. It found that there was no malpractice on the part of Zimbalist.
Plaintiff’s counsel made a motion to set aside the verdict as against the weight of the evidence, but it was denied.