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New York Court Discusses Evidence Admissible in Medical Malpractice Matters

Breast cancer is a devastating illness that kills thousands of women each year. The majority of people who develop breast cancer do not have a familial history of the disease. Some patients, though, carry a gene mutation that creates a significantly high risk of not only developing breast cancer but also ovarian cancer. As such, doctors will often recommend that a patient who was diagnosed with breast cancer undergo genetic testing. As evidenced in a recent New York ruling, the failure to recommend such testing may constitute medical malpractice. If you sustained damages due to a doctor’s mismanagement of your breast cancer, it is smart to contact a Rochester medical malpractice lawyer to discuss your options for seeking compensation.

The Facts of the Case

It is reported that the decedent was diagnosed with breast cancer in August 2002, after which she sought treatment from the defendant oncologist. The decedent was subsequently diagnosed with ovarian cancer in July 2007 and passed away in September 2007. It is alleged that the decedent’s only sibling underwent genetic testing in January 2008 and was found to have a gene mutation that significantly increased her risk of ovarian cancer.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendant, arguing that he violated good medical practice by neglecting to appropriately advise the decedent to obtain genetic counseling, which may have revealed that she inherited the gene mutation.

Prior to trial, the defendant moved to preclude the plaintiff from introducing evidence of the decedent’s sister’s test results at trial, arguing that it was extremely speculative on the issue of causation. The court granted the motion, and the jury found in favor of the defendant. The plaintiff then appealed.

Evidence in Medical Malpractice Cases

On appeal, the appellate court reversed the trial court ruling. The court noted that the evidence that the decedent’s sister tested positive for the gene mutation variant was not unduly prejudicial and was relevant to the issue of proximate cause. Specifically, it would have supported the plaintiff’s argument that the decedent more likely than not would have undergone gene testing if properly advised to do so, and would have tested positive for the harmful gene variant and undergone a procedure to remove her ovaries, removing the chance that she could develop ovarian cancer. This evidence would have further undermined the defendants’ claim that the decedent’s chances of testing positive for the dangerous gene mutation were only 2.5 to 5%. As such, the court found that the exclusion of such evidence was not a harmless error and remanded the matter for a new trial.

Speak to a Skillful Rochester Attorney

People diagnosed with breast cancer may face an increased chance of developing other cancers as well, and if their doctors do not evaluate their individual risks, such oversights can have disastrous consequences. If you or someone you love sustained injuries due to improper care following a breast cancer diagnosis, it is in your best interest to speak to an attorney as soon as possible. The skillful Rochester medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can assess your harm and advise you regarding what claims you may be able to assert in pursuit of damages. You can contact us through the online form or by calling at 585-653-7343 to set up a meeting.

 

 

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