New York Verdicts

Plaintiff(s):

John Ficke (Male, 52 Years), 

Mary Lou Ficke

Plaintiff Attorney(s):

Charles S. Gucciardo;
The Gucciardo Law Firm, PLLC;
New York,
NY,
for
John Ficke, Mary Lou Ficke ■ Paul L. LaClair;
The Gucciardo Law Firm, PLLC;
New York,
NY,
for
John Ficke, Mary Lou Ficke

Plaintiff Expert(s):

Paul Bader; M.D.; Oncology; Forest Hills,
NY called by:
Charles S. Gucciardo, Paul L. LaClair ■ Farbod Darvishian; M.D.; Pathology; New York,
NY called by:
Charles S. Gucciardo, Paul L. LaClair

Defendant(s):

Asher D. Rabinowitz, 

Asher D. Rabinowitz, M.D., P.C., 

Columbia University College of Physicians and Surgeons

Defense Attorney(s):

Peter C. Kopff;
Peter C. Kopff, LLC;
Garden City,
NY,
for
Asher D. Rabinowitz, Asher D. Rabinowitz, M.D., P.C., Columbia University College of Physicians and Surgeons

Defendant Expert(s):

Edward Heilman;
Dermatology;
Port Chester,
NY called by:
Peter C. Kopff

Insurer(s):

MCIC Vermont Inc. for all defendants

In June 2013, plaintiff John Ficke, 52, a self-employed landscaper, underwent a biopsy that revealed that he was suffering desmoplastic melanoma, which is a rare cancer of the skin. The cancerous area stemmed from a lesion that was located near his sternum. The cancer was deemed malignant, and a test revealed that it had metastasized. Ficke’s condition is terminal. Ficke had undergone a prior biopsy of his sternum’s lesion. The test was performed in June 2012, and the biopsied tissue was reviewed by pathologist Dr. Asher Rabinowitz, at Columbia University College of Physicians and Surgeons, in Manhattan. Rabinowitz opined that the lesion was a dysplastic melanocytic nevus, which is the equivalent of a mole. He contended that the lesion was benign. After Ficke’s cancer had been diagnosed, another pathologist reviewed the tissue that Rabinowitz had analyzed. The reviewing pathologist determined that the tissue was a malignant melanoma. Ficke sued Rabinowitz; Rabinowitz’s practice, Asher D. Rabinowitz, M.D., P.C.; and Columbia University College of Physicians and Surgeons. Ficke alleged that Rabinowitz failed to properly interpret the tissue that he analyzed, that Rabinowitz’s failure constituted malpractice, and that the remaining defendants were vicariously liable for Rabinowitz’s actions. Ficke’s expert pathologist opined that Ficke’s cancer should have been diagnosed in June 2012. He contended that Rabinowitz misinterpreted the tissue that he analyzed, and he opined that the error constituted a departure from an accepted standard of medical care. Ficke’s counsel argued that Rabinowitz’s error allowed fatal metastasis of Ficke’s cancer. Rabinowitz contended that he correctly interpreted the tissue that he analyzed. He contended that the tissue did not depict sufficient evidence of cancer. Defense counsel contended that Ficke’s cancer was a rare, desmoplastic melanoma that occupied an unusual area.

In June 2013, Ficke learned that he was suffering desmoplastic melanoma. In August 2013, a doctor diagnosed stage-III metastatic cancer of one of Ficke’s lymph nodes. Ficke underwent application of radiation that was intended to stall the spread of his cancer. In February 2014, a doctor diagnosed stage-IV metastatic cancer of one of Ficke’s lungs. Ficke underwent chemotherapy, but the lung’s tumor’s size tripled. A different chemotherapeutic regimen was instituted, and the tumor’s size greatly diminished. The treatment is ongoing. Ficke’s treating oncologist opined that Ficke’s cancer was not timely diagnosed. He contended that timely treatment could have prevented the disease’s fatal spread. He estimated that Ficke will not survive more than five years. Ficke claimed that he suffers chronic fatigue, listlessness and weakness, that he cannot endure prolonged periods in which he is seated, and that he cannot work. Ficke’s counsel contended that Ficke’s condition will progressively worsen until Ficke’s death. Ficke sought recovery of damages for past and future pain and suffering. His wife, Mary Lou Ficke, sought recovery of damages for past and future loss of services.

The jury found that Rabinowitz departed from an accepted standard of medical care. It determined that the Fickes’ damages totaled $3,706,000.

John Ficke: $895,000 Personal Injury: Past Pain And Suffering; $2,361,000 Personal Injury: Future Pain And Suffering; Mary Lou Ficke: $150,000 Personal Injury: Past Loss Of Services; $300,000 Personal Injury: Future Loss Of Services

Judge:

F. Dana Winslow

Demand:

$10,000,000 (total, by both plaintiffs, from all defendants)

Offer:

$750,000 (total, for both plaintiffs, by all defendants)

Trial Length:

9
 days

Trial Deliberations:

6
 hours

Jury Vote:

6-0

Jury Composition:

3 male/ 3 female

Post Trial:

Defense counsel has moved to set aside the verdict.

This report is based on information that was provided by plaintiffs’ and defense counsel.