New York Verdicts

Type:

Verdict-Defendant

State:

New York

Venue:

New York County

Court:

New York Supreme

Injury Type(s):

Case Type:

Wrongful Death – Survival DamagesMedical Malpractice – Cancer Diagnosis, Delayed Treatment, Failure to Diagnose

Case Name:

Joshua Olshin, as Executor of the Estate of Sally Olshin, Deceased v. Marc J. Yunis M.D., David P. Magier, M.D. and Yunis, Roberts, Barrau, P.C.

Date:

June 27, 2013

Plaintiff(s):

Estate of Sally Olshin (Female, 66 Years)

Plaintiff Attorney(s):

David J. Dean;
Sullivan Papain Block McGrath & Cannavo P.C.;
New York,
NY,
for
Estate of Sally Olshin

Plaintiff Expert(s):

Lester Salwen M.D.;
Gastroenterology;
Brooklyn,
NY called by:
Estate of Sally Olshin ■ Robert Odze M.D.;
Pathology;
Boston,
MA called by:
Estate of Sally Olshin ■ Richard Hirschman M.D.;
Oncology;
New York,
NY called by:
Estate of Sally Olshin

Defendant(s):

Marc J. Yunis, 

David P. Magier, 

Yunis, Roberts, Barrau, P.C.

Defense Attorney(s):

John D. Paterniti;
Shaub, Ahmuty, Citrin & Spratt LLP;
New York,
NY,
for
Marc J. Yunis, David P. Magier, Yunis, Roberts, Barrau, P.C.

Defendent Expert(s):

Mark Schattner Gastroenterology;
New York,
NY for
Marc J. Yunis, David P. Magier, Yunis, Roberts, Barrau, P.C. ■ Julia Smith Oncology;
New York,
NY for
Marc J. Yunis, David P. Magier, Yunis, Roberts, Barrau, P.C. ■ Heidrun Rotterdam Pathology;
New York,
NY for
Marc J. Yunis, David P. Magier, Yunis, Roberts, Barrau, P.C.

Insurer(s):

Medical Liability Mutual Insurance Co.

On March 20, 2007, plaintiff’s decedent Sally Olshin, 66, a counselor, underwent a colonoscopy. The procedure was performed by gastroenterologist Dr. David Magier. The doctor opined that the test did not reveal an abnormality. In January 2009, Olshin learned that she was suffering stage-IV cancer of her colon. The disease could not be eradicated, and it ultimately claimed her life. Olshin’s son, Joshua Olshin, claimed that his mother’s cancer predated the colonoscopy that Magier performed. He further claimed that the disease should have been diagnosed by Magier and one of Magier’s associates, internist Dr. Marc Yunis, who also managed Olshin’s mother’s care. Joshua Olshin, acting as the executor of his mother’s estate, sued Magier, Yunis and the doctors’ practice, Yunis, Roberts, Barrau, P.C. The estate alleged that Magier and Yunis failed to diagnose Sally Olshin’s cancer, that the doctors’ failures constituted malpractice, and that the doctors’ practice was vicariously liable for their actions. The estate’s counsel ultimately discontinued the claim against Yunis. The matter proceeded to a trial against Magier and his practice. The estate’s expert gastroenterologist opined that Sally Olshin’s cancer should have been detected during the colonoscopy that was performed in March 2007. The estate’s expert pathologist estimated that the cancer developed during a period that spanned seven, eight, nine or 10 years, and he claimed that the disease had to have been present and detectable during the colonoscopy. The estate’s expert oncologist noted that the cancerous tumor was detected when its size had reached 3.5 centimeters. He estimated that the colonoscopy would have revealed a tumor that measured 2.3 centimeters. The estate’s counsel claimed that prompt treatment would have produced a near-certain likelihood of survival. The defense’s expert oncologist opined that Olshin suffered an aggressive, quickly growing cancer. She claimed that pathology suggested that the disease formed after the colonoscopy had been performed. The defense’s expert pathologist opined that Olshin’s cancer was a poorly differentiated adenocarcinoma that exhibited traits that suggested that it quickly progressed, but she claimed that she could not conclusively declare that the disease was or was not present during the colonoscopy. The defense’s expert gastroenterologist opined that poorly differentiated cancer can quickly develop and progress.

In January 2009, Olshin learned that she was suffering stage-IV cancer of her colon. The disease could not be eradicated, and it ultimately claimed her life. The estate’s counsel claimed that Olshin’s cancer could have been diagnosed during the March 2007 colonoscopy that Magier performed. He claimed that prompt treatment would have produced a near-certain likelihood of survival. Olshin, 69, died Oct. 3, 2010. She was survived by four children. Her estate sought recovery of wrongful-death damages that included $3 million for her pain and suffering. Defense counsel maintained that Olshin’s cancer formed after the colonoscopy that Magier performed.

The jury rendered a defense verdict.

Judge:

Cynthia S. Kern

Demand:

$900,000 (total, from all defendants)

Offer:

None

Trial Length:

3
 weeks

Trial Deliberations:

20
 minutes

Jury Vote:

6-0

Jury Composition:

3 male/ 3 female

This report is based on court documents and information that was provided by defense counsel. Plaintiff’s counsel did not respond to the reporter’s phone calls.