As Published In
Xxxxxxxx Kapcio v. Mt. Sinai Hospital; [CAE], M.D.; [MY], M.D.; [MSR], M.D.; [AR], M.D.; [ASL], M.D.; and [AR], M.D.
Date of Decision: 5/30/00
Mediator: Michael McAllistor
Plaintiff Attorney: Eric Turkewitz, Manhattan, trial counsel to Taisa N. Rak, Manhattan
Defendant Attorney: Jay A. Rappaport of Aaronson, Rappaport, Feinstein & Deutsch, Manhattan, for Hospital Jerry Giardina for Jackson & Consumano, Manhattan, for doctors
This action settled during jury selection for $200,000. It had not yet been assigned to a judge, and was settled before a mediator. In August 1990, Plaintiff, age 36 at the time, presented to Defendant [MSR], a neurologist, due to panic attacks and a left-side facial droop. When her symptoms worsened over a 1-week period to include problems with her left arm, an MRI was ordered, which showed two large lesions in her brain. Plaintiff was immediately admitted to Defendant Hospital. Defendant [CAE], an internist/hematologist, was called as a consult and made a presumptive diagnosis of central nervous system (CNS) lymphoma, and she ordered a brain biopsy. During the hospitalization, Plaintiff was seen by Defendant [MY], who did not make any definitive diagnosis. Defendant [AR] performed the brain biopsy. The results of the biopsy were negative for lymphoma, but Plaintiff claimed that Defendants [CAE] and [MSR] told her that she had 3 months to live if she had no treatment, and they ordered radiation therapy. Defendants claimed that they told Plaintiff that she might have lymphoma, but that they wanted to radiate her as it would give her the best possible chance if she did have the disease. Defendants [AR] and [ASL] were the radiation oncologists who performed 26 radiation treatments. All of the parties agreed that untreated CNS lymphoma is fatal.
After the radiation treatments were completed, Defendants [CAE] and [MSR] advised Plaintiff that she would need chemotherapy. Plaintiff then sought a second opinion, and was told that she did not have lymphoma, but a mild case of multiple sclerosis.
Plaintiff contended that the brain should never be irradiated in the absence of a confirmed finding of lymphoma, because radiation has serious side effects, including necrosis of the brain. She also argued that radiation was not effective in curing lymphoma, and that chemotherapy was the proper treatment.
Defendants would have contended that Plaintiff had lymphoma, that it was cured by the radiation, and that radiation was an acceptable treatment. They also would have contended that even if Plaintiff did not have lymphoma, the radiological testing was consistent with it, and that therefore radiation was an acceptable therapy given the high mortality rate for CNS lymphoma.
Plaintiff claimed that she has a fear of death, and has suffered hair loss from the radiation treatment. She has also made subjective complaints of dementia from radiation necrosis. Plaintiff would have produced a psychologist for whom she had worked who would have testified that he had observed mental changes. She also would have produced a neuropathologist and neuroradiologist.