A 71-year-old Illinois man underwent a laparoscopic nephrectomy at a hospital in 2008. The operation was performed by a urologist assisted by another urologist.
During the dissection of the patient’s ureter, an arterial bleed occurred and was repaired. Because of the arterial injury, the patient required a significantly longer hospital stay. He underwent subsequent femoral bypass surgery, and suffered permanent damage to vasculature in the left leg.
The man sued the urologist and alleged he deviated from the standard of care by performing an extended dissection of the ureter, thereby increasing the risk of intraoperative injury. The patient further alleged lack of informed consent.
The urologist contended that dissecting down the ureter during the nephrectomy did not violate the standard of care, and that the patient was fully informed about the risk of intraoperative injury to surrounding structures when consenting to have his kidney removed. The jury returned a defense verdict.
LEGAL PERSPECTIVE: In malpractice cases that involve injury from a known complication of a procedure, an additional claim of lack of informed consent is often made and the patient contends that if he/she had known of the possibility of the complication, he/she would not have consented to the operation. This is usually overcome by presenting a signed consent form and can be further supported by a note in the medical record regarding the risk-benefit discussion had with the patient.
In the case above, the patient went further and claimed a medical battery was committed by the urologist, meaning treatment or touching of the patient without his consent, but the patient was unsuccessful in proving this to the jury.