Opinion
No. 104303/11.
05-02-2016
ZORAIDA ZAMBRANA, Plaintiff, v. CENTRAL PATHOLOGY SERVICES, P.C., and Richmond University Medical Center, Defendants.
Attorneys for plaintiff Zoraida Zambrana: Rheingold, Valet, Rheingold, McCartney & Giuffra LLP by Thomas P. Giuffra, Esq., and Sherri L. Plotkin, Esq. Attorneys for defendant Central Pathology Services, P.C.: Vaslas Lepowsky Hauss & Danke LLP by Kenneth M. Dalton. Attorneys for defendant Richmond University Medical Center: Shaub, Ahmuty, Citrin & Spratt LLP by Matthew J. Ross Mauro Lilling Naparty LLC, Of Counsel by Caryn L. Lilling.
Attorneys for plaintiff Zoraida Zambrana: Rheingold, Valet, Rheingold, McCartney & Giuffra LLP by Thomas P. Giuffra, Esq., and Sherri L. Plotkin, Esq.
Attorneys for defendant Central Pathology Services, P.C.: Vaslas Lepowsky Hauss & Danke LLP by Kenneth M. Dalton.
Attorneys for defendant Richmond University Medical Center: Shaub, Ahmuty, Citrin & Spratt LLP by Matthew J. Ross Mauro Lilling Naparty LLC, Of Counsel by Caryn L. Lilling.
ALAN C. MARIN, J.
Richmond University Medical Center (RUMC) moves here under CPLR 4404(a) following the jury's verdict in Zoraida Zambrana's medical malpractice claim against it and Central Pathology Services, P.C. The jury had found RUMC fully at fault (absolving Central Pathology Services), and awarded plaintiff $1,500,000 in past pain and suffering and $1,000,000 for future pain and suffering over a ten-year period.
RUMC seeks an Order that would 1) direct a verdict in its favor, or 2) set aside the verdict and direct either a new trial on all issues, or one on damages only.
* * *
Central Pathology Services, P.C. ran the hospital's pathology laboratory, which was on the ground floor, two floors below the operating rooms. Dr. C. Stefan Kwon was its president, sole shareholder and laboratory director. Central Pathology's workforce at RUMC was comprised of Dr. Kwon, three other pathologists and a billing clerk. About seventy employees of RUMC staffed the lab around the clock.
On October 26, 2010, Central Pathology diagnosed as cancerous a biopsy of a mass in Ms. Zambrana's mediastinal area (between the lungs and outer chest wall); she was 41 years old. To better ascertain whether lung or thymic cancer was indicated, an outside lab, Genzyme, Inc., was sent the tissue specimen; they concluded it was most likely thymic cancer. Thymic cancer is rare, with about 400 cases a year in the United States.
Plaintiff then underwent chemotherapy at Memorial Sloan Kettering Hospital from January through March of 2011. On April 27, 2011, a surgeon at Sloan Kettering removed the seven centimeter mass. The head of pathology at Sloan Kettering, Dr. David Klimstra, testified that because no cancer or signs of cancer were seen, they sent the RUMC specimen slides, along with a control sample from plaintiff taken at Sloan Kettering, to RedPath Labs, which does DNA testing.
The founder of RedPath, pathologist Dr. Sydney Finkelstein, testified that the DNA from cancerous slide FSB (see below) did not match Zambrana's; it was “from a different person” (it is not disputed that all the tissue samples came from a female). Defendant's expert pathologist, Dr. Frank Fromowitz, responded that cancer is a mutation of healthy cells, and therefore will differ genetically from healthy tissue.
The term “defendant” without a specific reference will mean the Richmond University Medical Center.
Questions three and four on the verdict sheet, which the jury answered affirmatively, by a five-to-one vote, read as follows:
“3. Did Richmond University Medical Center depart from accepted medical practice in the handling of the tissue specimen from the October 26, 2010 biopsy of Zoraida Zambrana?”
“4. Was such departure from accepted medical practice by Richmond University Medical Center a substantial factor in causing Mrs. Zambrana to undergo unnecessary chemotherapy?”
Except for the name of defendant Central Pathology Services, Question # 1 was identical to Question # 3. The jury unanimously answered “No” to Question # 1, and then, following the direction, went on to Question # 3.
RUMC argues that plaintiff presented no evidence as to whether it or Central Pathology was responsible for the alleged tissue “mixup,” pointing to the testimony of plaintiff's expert pathologist, Dr. Michael Dardik: “I don't know if it was a mistake that was done by the physician who ... handed the tissue to the laboratory staff, or the laboratory staff.”
The Tissue Specimen
On October 26, 2010 at RUMC, Dr. Loren Harris made a surgical incision so that he could biopsy the mass; because of its size and position, Dr. Harris did not attempt to excise the mass. The tissue specimen was sent to pathology for what is known as a frozen section, which means that the patient remains under anesthesia in case additional tissue is required for analysis.
The practice of handling a tissue specimen for a frozen sample was described at trial by nurse Daniel Mondello, lab technician Xiao Ya Ning and Dr. Kwon. Mr. Mondello and Ms. Ning were RUMC employees.
The tissue specimen is placed in a bag sealed with scotch tape and labeled with the names of the surgeon and patient. A corresponding pathology sheet is filled out by the nurse, which will list the surgeon, patient and description of the specimen.
The sealed bag would be sent to the pathology lab by pneumatic tube, or a nursing assistant would personally take it down; there was no evidence on which method was used for Ms. Zambarana's specimen. In any event, Mr. Mondello added: “My job is to make sure that the specimen gets down there and it is by a phone call. I always make a phone call ... to make sure the specimen is received ... when you call, you have to say the patient's name, the doctor, and they would say, yes, we have it.”
The specimen is received by the registration clerk at the lab, a RUMC employee, who gives the specimen an accession number, makes a computerized entry and one that is handwritten in the pathology logbook. The registration clerk walks the specimen over to the frozen section room, which is located within the lab, and hands it to the pathologist on duty.
The pathologist compares the label on the bag to the requisition form. The doctor cuts open the bag and places the specimen on a fresh piece of paper towel on a cutting board. The pathologist determines which piece or pieces of the specimen will become the frozen sections and cuts away fatty tissue with a disposable scalpel.
The histology technician (“histotech”) takes a stainless steel disc, slightly larger than a quarter, and the pathologist places a piece of tissue on it. The histotech inserts the disc into the cryostat, which freezes the tissue into a block. The histotech puts each block into a slicer that produces slices that are 7 to 10 thousandths of a millimeter thick, and mounts them on slides.
The histotech stains the slides (to enable viewing under the microscope), writes the accession number on them, and covers each with a glass slip. The covered slides go back to the pathologist, who examines them under a microscope, reaches a diagnosis and calls the surgeon in the operating room with it.
Ms. Ning testified that only one disc at a time goes into the cryostat. Two pieces of Ms. Zambrana's mediastinal tissue would have been frozen separately into two blocks. These were frozen sections A and B, known as “FSA” and “FSB.” Three sets of slides from Ms. Zambrana were prepared. The remainder of the tissue specimen was subsequently used for a permanent section.
Dr. Woong Man Lee, the pathologist covering the frozen section room that morning, testified that Ms. Zambrana was the first patient of the day, and that the previous frozen section was done at 9:30 a.m. the day before. According to the logbook, plaintiff's section was completed at 9:08 a.m., and the frozen section from the next patient not received until 10:35 a.m. Ms. Ning testified that pathology slides are not kept or left in the frozen section room, and that the tissue specimen from only one patient is worked on at any time.
Dr. Lee and Ms. Ning testified that a histotech performed a daily cleaning of the cryostat and a cleaning after each use with ultraviolet light. Ms. Ning said that first thing in the morning, the histotech checks and cleans the room, which includes using a bleach-based concentrate to clean the cutting board and work area.
There was an issue whether histotechs consistently wore gloves, but Ms. Ning explained that gloves were worn to protect against infectious disease and the ice-cold cryostat, which can burn the skin. For her part, Ms. Ning testified that she always wore gloves.
* * *
For a court to direct a verdict as a matter of law, it must be shown that there was “no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.” Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499. As for ordering a new trial because a verdict is contrary to the weight of evidence, the standard is whether “the jury could not have reached the verdict on any fair interpretation of the evidence.” Nicastro v. Park, 113 A.D.2d 129, 134 (2d Dept).
The evidence of how a tissue specimen is handled sufficiently supports the jury's conclusion that the responsible actor was the individual(s) who prepared the tissue slides and cleaned the cryostat and lab, rather than the doctor analyzing it under a microscope —reflected in their answers on the verdict sheet that implicated Richmond University Medical Center. Dr. Dardik's testimony that he could not choose between defendants does not alter that; see PJI 1:90, with which the jury was instructed.
As noted, the pathologist would cut the original specimen into a number of pieces for analysis.
The Court is not persuaded otherwise by defendant's citation of Bucsko v. Gordon, 118 AD3d 653 (2d Dept 2014), a multiple-defendant medical malpractice case involving a piece of surgical packing left in a patient. It is unnecessary to reach plaintiff's argument that under Mduba v. Benedictine Hosp., 52 A.D.2d 450 (3d Dept 1976), the acts or omissions of Central Pathology Services, P.C. are to be imputed to Richmond University Medical Center.
See also for example, Muslim v. Horizon Medical Group, P.C., 118 AD3d 681 (2d Dept 2014).
Defendant challenges the jury's implicit finding that negligent handling of the tissue specimen by RUMC's employee(s) resulted in tissue from another person on slide FSB. Dr. Fromowitz, defendant's expert, testified that even though genetic fingerprints do not match, one cannot conclude that they are from different people.
Dr. Dardik observed: “Either way pieces of tissue can sometimes unfortunately in the best of circumstances get into other blocks. Now most of the time this is recognized and caught. But there is even with good procedure the possibility for contamination.”
Dr. Fromowitz testified that in about 30% of cases, cancerous tissue will match with normal tissue and in 70% will not. Dr. Fromowitz explained that the standard testing kit used by RedPath was tailored to normal tissue, that it tested seven points of a possible 15,000 points or markers, and that of the seven tested markers, four were known to mutate. Moreover, Dr. Fromowitz asserted that finding a rare, benign lymphangioma (vascular tumor) in all the specimen slides shows that they all came from Ms. Zambrana.
Dr. Klimstra of Sloan Kettering concluded that the tissue sample on slide FSB was not from plaintiff. He testified that after a mass is treated with chemotherapy, “occasionally the treatment is highly effective and there is no cancer left behind, but there are footprints of the cancer that are fairly characteristic that we can recognize ... a significant amount of scarring/inflammation ...”
RedPath's Dr. Finkelstein tested seven genetic markers from slide FSB and while one marker did match Ms. Zambrana, six did not; each non-match with a probability of at least one in 20. The doctor stated that the probability of the six not matching was in the “hundreds of millions.” Dr. Finkelstein also pointed out that slide FSB had both cancerous and non-cancerous tissue and that they matched, meaning they were from the same person, but they did not match slides that were indisputably Zambrana's: slide FSA and the control slide prepared at Sloan Kettering.
Dr. Fromowitz did not agree that the cancerous and noncancerous parts of slide FSB matched.
Therefore, the jury was within Hallmark/Nicastro in basing their verdict on the testimony of Drs. Klimstra and Finkelstein, over that of Dr. Fromowitz, that the cancerous tissue was from another woman.
In view of the foregoing, IT IS ORDERED that Richmond University Medical Center's motion is denied to the extent that it seeks an Order directing 1) judgment in its favor; or 2) that the verdict on liability be set aside and a new trial ordered.
Damages
Ms. Zambrana testified—without objection—that Dr. Kim Yumi informed her the type of cancer she had would spread quickly and affect her brain. No evidence, however, was submitted as to survival rates. After the diagnosis, she and her husband, Emmanuel, talked about how he would have to care for their three children alone.
Dr. Klimstra testified that thymic cancer was aggressive.
Plaintiff stated: “The first chemo almost killed me. I was in bed two weeks ... I couldn't eat. I couldn't drink ...” Sloan Kettering modified the chemotherapy, but Ms. Zambrana was still “exhausted completely ... I couldn't breathe.” Contributing to her fear that she would not survive, Sloan Kettering informed her that the treatment was not working: the mediastinal mass was not shrinking. Ironically, this may have been because chemotherapy drugs kill only cells that are dividing—namely, cancer cells.
Ms. Zambrana is entitled to an appropriate award for such. The Court is not dissuaded by defendant's argument that compares the Zambrana award to damages in cases where delayed or improper treatment resulted in an unnecessary mastectomy (Gonzalez v. Jamaica Hosp., 25 AD3d 652 [2d Dept 2006] ; Lopez v. Bautista, 287 A.D.2d 601 [2d Dept 2001] ; Simmons v. East Nassau Med. Group, 260 A.D.2d 463 [2d Dept 1999] ; and Williams v. New York City Health & Hosps. Corp., 79 AD3d 440 [1st Dept 2010] ). As plaintiff testified, she spent a “horrible eight months” believing she would die.
Ms. Zambrana received the results of the RUMC biospy on the day it was taken—October 26, 2010. She was told following her April 27, 2011 surgery and the May 9 pathology report thereon that there were no signs of cancer; RedPath's report that the cancerous tissue was from another individual was dated July 22, 2011.
It might be noted that what happened to Ms. Zambrana is akin to cases involving the apprehension of impending death, usually for a short period of time following an accident of some kind (see for example, Juiditta v. Bethlehem Steel Corp. 75 A.D.2d 126 [4th Dept 1980] ).
Over four years elapsed from the time plaintiff definitively learned that she did not have cancer up until the jury's verdict on October 6, 2015. Those four years plus the ten-year period the jury found for future pain and suffering represent damages only from the effects of her treatment for cancer.
Clearly then a portion of the past pain and suffering award is for that period after Ms. Zambrana learned she did not have cancer, but testified about continuing to suffer the effects of chemotherapy. As of the time of trial, plaintiff said she easily tires, can not exercise or run the way she did before, that food does not taste the same and water “tastes like syrup.”
Plaintiff also relies on the testimony of pathologist Dr. Dardik, who when asked initially, responded that his knowledge of the effects of chemotherapy came from medical school. Dr. Dardik did not review any records after 2011, nor did he examine Ms. Zambrana. At trial, no oncologist was called to the stand. Other than following up during 2011 with her surgeon at Sloan Kettering, Dr. James Huang, plaintiff did not seek medical treatment for her complained-of symptoms.
Ms. Zambrana saw Dr. Huang on August 22, 2011 when he advised that her shortness of breath was attributable to the surgery he had performed to remove the mass, which had been pressing on her lung. On December 8, 2011, plaintiff went back to Dr. Huang, who wrote in her chart that patient's activity level has “improved markedly” and that the shortness of breath on exertion has also improved.
Ms. Zambrana was ready to resume employment fairly soon. According to her deposition, she sought to return to her former employer in August or September of 2011, but the position she had held was no longer available, and in October 2011 began working part-time for another employer.
In sum, there was but modest support in the record connecting plaintiff's chemotherapy to the fourteen years of effects that were proffered.
In view of the foregoing , IT IS ORDERED that this matter be severed and there be a new trial on Zoraida Zambrana's damages for pain and suffering against defendant Richmond University Medical Center, unless within 45 days after service upon it of a copy of this Order, plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to an award of damages for past pain and suffering in the principal sum of one million, two hundred thousand dollars ($1,200,000) and future pain and suffering in the principal sum of two hundred fifty thousand dollars ($250,000) and to the entry of judgment against such defendant reflecting same.
The Court reviewed the following: for defendant Richmond University Medical Center, a Notice of Motion with Affirmation in Support and a Reply Affirmation; for plaintiff, an Affirmation in Opposition to Post–Trial Motion of Defendant Richmond University Medical Center (with exhibits A through C). Defendant Central Pathology Services, P.C. submitted an Affirmation in Partial Opposition, opposing any result that would vacate the verdict on liability in its favor.