Published: July 09, 2008 11:21 pm      

MALPRACTICE SUIT: $9 million award may be appealed

The family of a North Tonawanda woman who died of a breast tumor in early 2004 has been awarded more than $9 million in a malpractice suit.

A Niagara County jury of six women found Dr. Nancy J. Stubbe failed to properly diagnose the 33-year-old mother of two, allowing her breast tumor to progress and ultimately kill her.

An award to the woman’s estate, husband and two children in the sum of $9,057,960.00 accompanies the jury’s decision, which was returned in late June.

But the sum, believed by many to be the largest if not one of the largest ever granted for malpractice in Niagara County, is still open for settlement and appeals.

“It is far from resolved,” Niagara County Court Judge Richard Kloch, who presided over the case, said. “There is a conference Friday; there are post trial motions. It is obviously a tremendous verdict, there’s a lot of work.”

Although five other physicians in addition to the defendant were summoned beginning in 2004, only Stubbe was ultimately tried. In 2004, the woman’s family sued three area doctors working at treatment centers in Amherst and Cheektowaga.

Those individuals and many others provided deposition of relevance to the woman’s treatment from the time the suit was filed, leading up to the trial. The depositions were part of the pre-trial “discovery period” that took roughly four years.

Corey Hogan, one of several attorneys for the plaintiff, said his team provided the majority of material witnesses, and that in total about 12 to 15 individuals provided testimony to the jury.

Various exhibits dealing with the diagnosis and treatment of breast tumors were presented to the jury, which included two nurses, Hogan said.

“We decided that the best way to proceed was to focus on the surgeon. It was a breast cancer case and we felt that she was the one who had the greatest amount of responsibility,” Hogan said.

“We had to show that in this case, Nancy Stubbe, her manor of treatment didn’t meet what they call a standard of care in this situation.”

Stubbe is allowed to continue practicing medicine, as is usually the case in matters in which malpractice is established without malice. All physicians carry malpractice insurance, which in this case is liable for the court’s decision.

The more than $9 million involved could not be verified as a precedent for the county. Kloch said he is aware of just one other case, in Chautauqua County, in which a larger sum was awarded.

He said the trial, which ended in its third week June 30, had involved two or three other judges at various points, but that he alone presided for the jury’s verdict.

The case is still technically pending, and Kloch has yet to file his judgment with the county clerk, after which the defense will have 30 days to file the expected appeal.

“I would be surprised if they didn’t file an appeal. It would be something that would be absolutely expected in a case like this one,” Hogan, partner at HoganWilling, Attorneys at Law, said.

The conference will be held Friday in Kloch’s chambers, and will involve the judge, lawyers representing both the plaintiff and the defendant, as well as lawyers from the defendant’s insurance company, and possibly others, Hogan said.

“Part of what we’re going to do is sit down with the attorneys for the doctor and the insurance company and see if this matter can be resolved,” he said.

Kloch reserves the right to let the award stand, set it aside or make modifications, but he added it is a “complicated” process.

“There’s not $9 million worth of insurance here,” Hogan said.

He said that means there is a greater chance the company will seek resolution, if they are responsible for more than the coverage rate.

“Like in any settlement, both sides would have to take concessions.”

Attorney John Loss, who represented Stubbe in the case, could not be reached for comment Wednesday.

Contact reporter Neale Gulleyat 693-1000, ext. 114.