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Rosenberg v. Tavorath6/27/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 5, 2002
Plaintiff, Rita B. Rosenberg, the executrix and administratrix ad prosequendum of the estate of her deceased husband, David L. Rosenberg, appeals from the grant of an involuntary dismissal of the complaint at the close of plaintiff's case. The judge ruled that plaintiff's expert failed to delineate a standard of care or a departure from any standard, or that any alleged deviation of care was a proximate cause of decedent's death.
Decedent, a former smoker, suffered from laryngeal cancer, specifically stage III squamous cell carcinoma, which is treatable. In November 1997, he was referred to Dr. Elliot Strong, a cancer surgeon specializing in head and neck surgery, at Memorial Sloan-Kettering Cancer Center ("MSKCC") in New York City. Dr. Strong recommended treating the disease with two to three cycles of chemotherapy, a few weeks apart, and then determining what the results were in terms of shrinking the cancer which could then be radiated, as an alternative to surgery, in order to preserve the patient's larynx and ability to speak. In the event the prescribed course of treatment was not effective, Mr. Rosenberg would have the option of undergoing surgery for the removal of his larynx and the placement of a prosthetic voice box.
As Dr. Strong did not have anything to do with determining which chemotherapy drugs were used or the dosage, and he did not manage patients on chemotherapy, he referred Mr. Rosenberg to Dr. Karen Schupak, a radiation therapist who practiced at MSKCC's "satellite facility" at Northwest Covenant Medical Center ("Northwest") in Denville, New Jersey, which was closer to decedent's home. Dr. Schupak referred Mr. Rosenberg to defendant, Ranjana Tavorath, M.D., a board-certified medical oncologist also practicing at MSKCC's Northwest satellite facility.
In accordance with MSKCC's larynx preservation protocol ("LP protocol"), which sets forth the dosages and schedules for administering the chemotherapy, Dr. Tavorath's plan of treatment involved administering two cycles of chemotherapy, containing a combination of cisplatin and fluorouracil, over a three-to-four- week schedule. Every record of treatment by Dr. Tavorath was sent to both Drs. Strong and Schupak. Mr. Rosenberg was administered out-patient chemotherapy treatment over a five-day period beginning on December l7. Thereafter, he experienced complications including nausea, high fever, severe diarrhea, low blood count, and dehydration requiring his hospitalization from December 28 through January 2, 1998. During this hospitalization, he was treated by Dr. Ephraim S. Casper, Dr. Tavorath's supervisor and the Chief of MSKCC's site at Northwest.
On January 6, 1998, Dr. Tavorath evaluated Mr. Rosenberg for his second cycle of chemotherapy. She determined he was substantially recovered from the prior toxicities and administered an identical second round of chemotherapy beginning the next day through January ll, 1998.
On January 17, 1998, due to a 104E fever, Mr. Rosenberg was treated in the emergency room and placed on a respirator, before being admitted to the intensive care unit for management of what appeared to be a sepsis syndrome. He was diagnosed as suffering from "chemotherapy-induced neutropenic fever . . . complicated by dehydration" and septic shock. Despite treatment, his condition worsened. On January 19, 1998, decedent died as a result of septic shock, induced by chemotherapy neutropenia and toxicity, which caused multiple organ failure.
Plaintiff brought the instant medical malpractice action against Dr. Tavorath, MSKCC and Northwest, and f
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