Patient Allegedly Receives Delayed Lung Cancer Diagnosis Following Chest X-Ray

Oncology Expert

Court: United States District Court for the Southern District of New York
Jurisdiction: Federal
Case Name: Salazar v. United States
Citation: 2019 U.S. Dist. LEXIS 25245


The plaintiff brought this complaint against the Veteran Affairs (VA) New York Harbor Healthcare System alleging the medical staff failed to diagnose and treat him for non-small cell lung cancer after he received a chest x-ray. The defendant retained an expert in pulmonary oncology to testify against the plaintiff’s allegations. The plaintiff subsequently moved a motion in limine to limit the testimony of the defendant’s expert witness.

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Expert’s Qualification

The defendant’s pulmonary oncology expert specialized in treating patients with thoracic malignancies, principally non-small cell lung cancer. The expert was an assistant professor of medicine in a hospital’s hematology and medical oncology department as well as an assistant attending at a top academic medical center. He held both an M.D. and a Ph.D. and completed a prestigious fellowship in hematology and medical oncology. He had also published lung cancer research in top medical journals.

The expert testified that it was not possible for anyone to determine the stage of the plaintiff’s lung cancer (with a reasonable degree of medical certainty) based on his initial chest x-rays. The expert also noted that roughly 40% of lung cancer patients relapse within 5 years and that there was a significant possibility that even if the treatments initially appeared successful, the plaintiff would have relapsed. The plaintiff argued that the expert’s opinions were unreliable as they were based on hypothetical questions unsupported by evidence.

Court Discussion

The plaintiff argued that the oncology expert’s testimony was unreliable as it was inconsistent with the opinions in his reports. However, the plaintiff’s description of the testimony they expected the defendant’s expert to opine on was not supported by the record. The plaintiff had misinterpreted the defendant’s statement to mean that the expert would testify as to the stage of the plaintiff’s cancer.  The defendant clarified that the expert would not offer the type of testimony the plaintiff had described. The expert would only testify that it was not possible for anyone to determine the stage of the plaintiff’s lung cancer based on his initial chest x-rays. This opinion was consistent with the expert’s report which stated that the chest x-ray was not sufficient to diagnose lung cancer or provide a stage.

The plaintiff argued that his expert held a different opinion and that it was, in fact, possible to explain the plaintiff’s stage of cancer.  The plaintiffs also asserted that the expert would testify whether the plaintiff’s prognosis would have been different if his cancer had been diagnosed earlier. However, it was not mentioned anywhere in the record that the expert would provide such testimony.  The defendant argued that the expert would opine that it was not possible for anyone to determine to a reasonable degree of medical certainty that, absent the delay in diagnosis, the plaintiff’s course of treatment would have been different.


The court held that the defendant’s expert opinions were not mere supposition based on the evidence in the plaintiff’s diagnosis. The experts education and experience provided him with a basis to opine on the treatment options available to patients with non-small cell lung cancer and to answer hypothetical questions about what the plaintiff’s prognosis would have been had he received those treatments. Since the expert’s testimony was deemed reliable and within the scope of his reports, the plaintiff’s motion was denied.