Appellate Court Affirms Summary Judgment in Late Diagnosis of Breast Cancer Lawsuit

A New York Appellate Court has held that the plaintiff in a breast cancer negligence case failed to raise a triable issue of fact and opposition to a defendant’s summary judgment motion.

Merlinda Paglinawan underwent a screening mammogram and ultrasound. The interpreting radiologist recommended a follow-up diagnostic mammogram and ultrasound. Paglinawan discussed this with her obstetrician-gynecologist, Dr. Ing-Yann Jeng, who agreed.

The report of the follow-up test recommended a targeted ultrasound in 6-12 months. The following year, Dr. Jeng referred Paglinawan to a breast surgeon, leading to a diagnosis of Stage II breast cancer. That diagnosis was made several months later.

Paglinawan and her husband sued Dr. Jeng, alleging that the doctor negligently chose not to recommend certain tests after the diagnostic studies. Dr. Jeng moved successfully for summary judgment.

In affirming, the appellate court noted that in support of the motion for summary judgment, defendant Dr. Jeng submitted an affirmation of a board-certified Ob-Gyn, who opined that the defendant, Dr. Jeng, did not depart from the standard of care in his treatment of Paglinawan, including his adherence to the radiologist’s recommendations and his communications with her. Thus, the appellate court found that Dr. Jeng had established his prima facie entitlement to summary judgment dismissing the plaintiffs’ medical negligence lawsuit.

Conversely, the appellate court said that the plaintiffs chose not to raise a triable issue of fact. The plaintiffs’ expert did not set forth the factual basis for his opinion that a patient with a family history of colon cancer, such as Paglinawan’s, should be monitored for breast cancer more closely. Moreover, the appeals panel found that the expert failed to specifically state that the relevant standard of care required such monitoring.

Accordingly, the appellate court concluded that summary judgment for the defendant physician was proper and affirmed the trial court’s order dismissing the lawsuit.

Paglinawan v. Jeng, 211 A.D. 3D 743 (NY App. Div.).

Kreisman Law Offices has been handling misdiagnosis of cancer cases, misdiagnoses of breast cancer lawsuits, medical malpractice cases, birth injury lawsuits, Illinois appeals, motions for summary judgment, failure to diagnose and treat cancer lawsuits, and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 47 years in and around Chicago, Cook County and its surrounding areas, including Barrington Hills, Long Grove, Bannockburn, Arlington Heights, Elgin, Joliet, Romeoville, Crystal Lake, Cary, Round Lake Beach, Waukegan, Lake Bluff, Mundelein, Wheeling, Prospect Heights, Glenview, Wilmette, Niles, Skokie, Chicago (Near North Side, Little Italy, Little Village, Garfield Park, Back of the Yards, Kenwood, Woodlawn, Douglas, South Shore, Hyde Park, Grand Crossing, Calumet Heights, Chatham, Wrightwood, Ashburn, Mount Greenwood, West Pullman, Morgan Park), Bolingbrook, Bridgeview, Hickory Hills, Country Club Hills, Mokena and Frankfort, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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