Kathryn C. Collins, second seated by Alexandra Downey Thomas, successfully defended a hematologist-oncologist who, in 2017, was co-managing the care and treatment of a 64-year-old woman. The woman had previously been diagnosed with squamous cell carcinoma tongue cancer and had undergone a resection of her tongue by a non-party ENT oncology surgeon. The case was tried before the Supreme Court in Orange County, New York and involved claims that the hematologist-oncologist failed to recommend precautionary chemotherapy to the woman following a total resection of the cancer with clean surgical margins. A claim was also made that after a recurrence occurred, the hematologist-oncologist administered an insufficient combination of chemotherapy and, as a result, the 64-year-old woman suffered for almost 22 months before passing away.
In this complex case, Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client cared for the plaintiff during her prior diagnosis of breast cancer some two years before she was diagnosed with tongue cancer. FKC&S’s client was not involved in the initial decision making regarding the treatment of the tongue cancer and was only alerted to the plaintiff’s diagnosis some four months after she had undergone tongue resection surgery to remove the cancer. Unfortunately, while hospitalized for the tongue resection, the plaintiff suffered a stroke, which resulted in an anoxic brain injury requiring her admission to the hospital to be extended and followed by a seven-week admission to a rehabilitation facility. The plaintiff returned to see FKC&S’s client for a previously scheduled breast cancer follow up and her family advised that she had undergone successful tongue cancer treatment. The hematologist-oncologist reviewed the pathology from the surgery and agreed with the surgeon who had performed the surgery that the margins were clean and additional radiation or chemotherapy was not indicated.
Some three weeks later, a lump became visible in the plaintiff’s neck and she was brought to her surgeon for evaluation. After testing, it was determined that she had a massive tumor in her neck, displacing her airway and encompassing most of the critical arteries and vessels that run from the brain to the heart. The patient also had a lesion in her lung. It was believed that this was a recurrence of her tongue cancer, and the family was advised that surgical resection was not possible given the involvement of the arteries and vessels within the tumor, so she was referred to a radiation oncologist for palliative care. Upon seeing the co-defendant radiation oncologist for evaluation, the plaintiff was referred to her hematologist-oncologist for consideration of chemotherapy in addition to radiation. The plaintiff was admitted to the hospital for biopsy of the lung mass, and it was determined that the neck and lung mass were recurrent head and neck cancer. Given the speed with which the head and neck cancer returned, and the fact that surgical resection was not possible, the plaintiff and her family were told that there was no chance for a cure, and the prognosis was not good.
The plaintiff received eight cycles of radiation and chemotherapy over a period of 12 weeks, during which the tumor burden was significantly reduced in the neck and the lung lesion was stabilized. However, the plaintiff had some complications. She developed a draining wound on her neck, which her surgeon felt was due to a necrotic dead tumor. and she began to spike fevers. As a result, she was placed on antibiotics for three weeks and treatment was held. She was able to complete treatment, however, the tumor continued to encase the arteries and vessels and, ultimately, the plaintiff suffered a lingual artery bleed that led to her requiring coiling of her external carotid artery.
The plaintiff transferred her care to Memorial Sloan Kettering Cancer Center following the conclusion of her treatment with the defendants and she continued to have complications due to the aggressive nature of the cancer and her frailty. Throughout the duration of her treatment, the family remained hopeful for a miracle. Unfortunately, the plaintiff ultimately succumbed to her cancer approximately 22 months after diagnosis of her recurrence.
The plaintiff’s counsel called an expert hematologist-oncologist as well as an expert radiation oncologist, in an effort to establish that the plaintiff would have had a better outcome had the radiation and chemotherapy regimen been different. Specifically, the plaintiff’s hematology-oncology expert, who did not specialize in head and neck cancers, testified that even though the margins were clean and there was no lymph node involvement at the time of the initial surgery, FKC&S’s client should have placed the plaintiff on a highly toxic chemotherapy regimen due to the known aggressive nature of squamous cell carcinoma head and neck cancer. The plaintiff’s expert argued that even though the National Comprehensive Cancer Network guidelines do not call for chemotherapy in a plaintiff with clean margins and no lymph node involvement, FKC&S’s client should have administered it anyway. The plaintiff claimed that had FKC&S’s client administered chemotherapy, the plaintiff may have been able to achieve remission and certainly would have had a better quality of life. In the end, the plaintiff’s expert conceded at trial that the ultimate chemotherapy regimen that FKC&S’s client placed the plaintiff on following her recurrence was indeed appropriate.
The defense hematologist-oncologist, who was a world-renowned head and neck specialist and has performed the research that has led to major treatment developments specifically for squamous cell head and neck carcinomas, testified that the standard of care did not call for chemotherapy at the time that FKC&S’s client first saw the plaintiff following her initial tongue resection surgery. Furthermore, FKC&S’s expert testified that even if FKC&S’s client had recommended chemotherapy prior to the recurrence, it would not have altered the plaintiff’s course in any way as the mass in the neck and lung were more likely than not already present by the time of her first post-op visit with FKC&S’s client.
In terms of damages, plaintiff’s counsel suggested to the jury a verdict of approximately $15,000,000 for the plaintiff’s pain and suffering and $1,000,000 for the surviving husband’s loss of services. In support of that figure, plaintiff’s counsel relied upon testimony by the surviving husband as well as the plaintiff’s daughter who both described the plaintiff’s course during her head and neck cancer treatment.
After a four-week trial and four hours of deliberations, the jury returned a unanimous verdict in favor of FKC&S’s client, finding that the hematologist-oncologist had rendered proper care during the treatment of the plaintiff. The jury additionally found that the radiation oncologist provided appropriate care in the management of the plaintiff’s cancer.