Powers v. Memorial Sloan Kettering Cancer Center
1:20-cv-02625
S.D.N.Y.Mar 24, 2022Background
- Scott Powers (plaintiff) sued individually, as representative of Erika Zak’s estate, and as guardian of a minor, alleging medical malpractice, lack of informed consent, and wrongful death under New York law from an April 10, 2017 microwave ablation performed by Dr. Constantinos Sofocleous at Memorial Sloan Kettering (MSK).
- Ms. Zak had metastatic colon cancer with two liver lesions; she was referred to Dr. Sofocleous, who recommended ablation and (per plaintiff) did not meaningfully discuss alternatives.
- Post‑procedure imaging and expert testimony showed an unusually large zone of necrosis (up to ~13 cm) involving the porta hepatis, portal vein compromise, bile duct disruption, portal vein thrombosis, and multifocal hepatic artery strictures.
- Plaintiff’s experts and some treating physicians characterized the injury as catastrophic and outside the ordinarily expected ablation outcome; plaintiff’s interventional‑radiology expert criticized probe placement, excessive energy and duration, and inappropriateness of ablation given tumor proximity to the hilum.
- Ms. Zak was later listed for and taken to transplant surgery in August 2019 but died during the transplant; plaintiff thereafter filed suit. Defendants moved for summary judgment on all claims; plaintiff moved to exclude defendants’ expert Dr. Neil Theise.
- The District Court denied defendants’ summary judgment motion on all claims and denied plaintiff’s motion to exclude Dr. Theise; a trial scheduling order to follow.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Medical malpractice — departure from standard of care | Sofocleous should not have ablated a central tumor so close to the hilum; probe placement, excessive energy/time amounted to departure | Ablation decision and technique were within accepted practice; injuries were an unforeseen complication | Summary judgment denied — disputed expert opinions create triable issue on departure and causation |
| Causation for wrongful death | Ablation was substantial factor causing cascade of hepatic injury leading to liver failure and death | Death resulted from multiple prior therapies/surgeries and underlying disease, not ablation alone | Summary judgment denied — reasonable jurors could find ablation was a substantial factor |
| Lack of informed consent | Dr. Sofocleous failed to disclose meaningful risks/alternatives; recorded consult contained only ~3 seconds listing risks without explanation | Common risks were disclosed and abbreviated mention was sufficient | Summary judgment denied — recording and testimony create factual dispute whether consent was adequately informed |
| Exclusion of Dr. Theise (expert admissibility and discovery) | Theise’s opinions should be excluded for untimely production reliance and as unreliable | Defense timely produced materials Theise relied on; his methodology is reliable under Rule 702 | Motion to exclude denied — production was timely and methodological challenges go to weight, not admissibility |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (sets the federal summary judgment standard)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (district courts' gatekeeping role for expert testimony)
- Nimely v. City of N.Y., 414 F.3d 381 (2d Cir. 2005) (framework for Rule 702 admissibility inquiry)
- In re Mirena IUS Levonorgestrel-Related Prod. Liab. Litig. (No. II), 982 F.3d 113 (2d Cir. 2020) (expert reliability and weight vs admissibility)
- N.Y. State Teamsters Conf. Pension & Ret. Fund v. C & S Wholesale Grocers, Inc., 24 F.4th 163 (2d Cir. 2022) (summary judgment — drawing inferences for nonmoving party)
- Gilmore v. Mihail, 105 N.Y.S.3d 504 (N.Y. App. Div. 2019) (elements and summary judgment principles in NY medical malpractice)