Trial court ordered to proceed with malpractice case

Trial court ordered to proceed with malpractice case

A former leukemia patient has won his appeal to overturn the dismissal of a medical malpractice suit. The appellate judges are now sending the case back to the trial court for further proceedings.

Nearly eight years ago, the man was 16 and admitted to a hospital in another mid-Atlantic state. After a series of tests, an on-call oncologist at the hospital told the young man and his family that he had acute leukemia. The doctor ordered the chemotherapy, which began two days later under another oncologist’s care. Two weeks later, the young man was transferred to a nationally known cancer center, where he underwent radiation, more chemotherapy and a bone marrow transplant.

The young man recovered from the leukemia but found himself sterile. He sued the original on-call doctor and the first hospital, contending they committed medical malpractice by failing to disclose to him that the chemotherapy could cause sterility. The initial doctor also did not give the young man and his family the option of banking his sperm for the future, according to the lawsuit. At the trial, the doctor said that she has discussed sperm banking with men suffering from leukemia in the past but did not discuss it with this man.

Doctors who subsequently treated the young man and the second hospital were not named in the suit.

During the discovery phase of the trial, the judge dismissed the lawsuit, stating the young man was required to show, for the case to proceed, that he had suffered emotionally because he cannot father a child. The judge said the man did not show such distress when he gave his deposition at age 19.

The appellate court reversed the dismissal, stating that the trial court erred in ruling that the entire case hinged on the man’s level of distress. The appellate court ruled that the man’s sterility qualifies as a medical disability that does not need to be quantified emotionally.

Source: Leagle, “Brodsky v. Osumkwo,” April 10, 2012

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