Acacia Brush Perko, Esq.

A 57-year-old unemployed man with benign prostate hyperplasia (BPH) presented to his primary care physician. The patient reported that he had found a coin-sized bloody stain on his underwear after having engaged in sexual activity. The primary care physician ordered a blood test, and the test’s results revealed that the blood did not contain an abnormally high concentration of prostate-specific antigen (PSA).

A year later, the patient returned to his primary care physician and reported he had found another bloody stain on his underwear. His primary care physician ordered a urinalysis and performed a digital rectal exam of the patient’s prostate. The primary care physician reported that the test results did not reveal any abnormalities and concluded that the patient’s bloody discharges were merely the result of hematospermia.

Four months later, the patient returned. He reported that he had detected a lump in 1 of his axillae, and he also reported that he had not been able to maintain an erection. Tests did not reveal any abnormalities, so the primary care physician prescribed sildenafil citrate (Viagra).

Over the next 4 months, the primary care physician performed 2 additional exams. During each exam, the patient reported he suffered burning penile pain that occurred during or after intercourse. A test revealed that the patient’s blood contained a slightly abnormal concentration of PSA, so the primary care physician performed a digital rectal exam of the patient’s prostate. The primary care physician reported that he did not detect any nodules of the prostate, and the patient received a diagnosis of prostatitis. This time, the physician prescribed antibiotics.

Two and a half years after his initial visit, the patient returned to his primary care physician and reported he experienced a discharge of purulent seminal fluid. A test revealed that his blood’s PSA concentration had increased to 5.3 ng/mL. The primary care physician referred the patient to a urologist. The urologist confirmed that the patient was suffering metastatic cancer of his prostate. The cancer had progressed to a level such that it could not be eradicated, and the patient died.

The patient’s family brought a medical malpractice suit against the primary care physician, alleging that the disease could have been detected at least 1 year earlier and that prompt referral to a urologist and treatment would have saved his life.

Plaintiff: First symptoms should have prompted referral

At trial, the plaintiff’s attorney argued that the prostate cancer’s symptoms mimicked those of an enlarged prostate and that the patient’s first reported symptoms should have prompted a referral to a urologist, who could have performed the necessary tests that would have revealed cancer. The plaintiff’s expert urologist opined that prostate cancer is not easily detected, which is why the referral and involvement of urology was necessary.

The primary care physician’s defense counsel contended that the patient’s signs and symptoms were products of BPH, hematospermia, and prostatitis. The defense expert opined that these conditions are not certain indicators of cancer and that the treatment properly addressed those conditions. The primary care physician maintained he met the standards of medical care.

The patient died at age 62. He was survived by his wife, several adult children, and grandchildren.

After 3 days of trial, the jury deliberated for 1½ days, then returned a verdict for the plaintiff. In their responses to jury interrogatories, the jury found that the primary care physician breached the standard of care by failing to issue a timely referral to a urologist, and that this failure caused an incurable spread of cancer. The jury awarded the plaintiff $2.2 million.

A number of state legislatures have passed tort reform and limited damage awards in medical malpractice cases in response to rising health care costs and what some see as frivolous medical malpractice claims. The actual cap varies widely state to state, and it also varies as to what types of claims are subject to caps. For example, because this case was a wrongful-death claim, the state caps did not apply.

 is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters. She welcomes your feedback on this column at APerko@reminger.com.

Articles

Prostate cancer symptoms were mistaken for other conditions.

Delayed referral to urologist led to death; jury awards $2.2 million

A 26-year-old married mother of 2 young children had a history of methicillin-resistant staph aureus (MRSA) infections that manifested as skin outbreaks of carbuncles and furuncles. She developed a lesion in the middle of her back. As it was scabbing over, she developed unbearable back pain with fever.

She presented to the emergency department and was then admitted to the hospital under the care of an internist on a Friday morning. She had an elevated white blood cell count, clearly indicating infection. Her urinalysis revealed no bacteria, strongly indicating that she did not have a urinary tract infection. Despite this, the internist asked for a urology consult.

Urologist diagnoses patient with kidney infection

The urologist saw the plaintiff that Friday afternoon and made a diagnosis of kidney infection, even though the urinalysis showed no signs of bacteria. The urologist also asked for an infectious disease consultation because of the history of methicillin-resistant 

The hospital nurses told the infectious disease doctor of the consult request at 3:45 p.m. Friday and 3 more times over the weekend. The doctor was in the hospital Saturday and Sunday but did not see the patient.

The admitting internist and consulting urologist knew the infectious disease consultation was “necessary, reasonable, and prudent,” and that it did not come on Saturday or Sunday. Neither the internist nor the urologist did anything effective to get the infectious disease consult. They did not attempt a transfer.

The plaintiff had a continuous high fever with intractable back pain from the date of her admission on the Friday.

On Sunday, the hospital nurses noted weakness in the lower extremities and inability to empty her bladder, both of which were reported to the urologist on Sunday. The urologist performed an informal neurological examination but noted no weakness, and he did not request a neurology consult.

On Sunday evening, the plaintiff lost feeling in her legs and could not walk. The internist was notified at home, and he stated he would get a neurology consult in the morning. The infectious disease consult did not come until Monday morning, when the infectious disease doctor quickly diagnosed an epidural abscess from the MRSA lesion on the plaintiff’s back and ordered a stat MRI and decompression.

The plaintiff was left permanently paralyzed from the waist down with permanent loss of bowel and bladder control.

The plaintiff then filed a malpractice lawsuit claiming medical negligence against the admitting internist, urologist, the infectious disease doctor, and the hospital. It alleged improper management and treatment and delayed diagnosis of an epidural abscess that resulted in paralysis from the waist down and loss of bowel and bladder control.

Her allegations against the admitting internist and consulting urologist included failure to diagnose epidural abscess, improper diagnosis of kidney infection, and failure to transfer when the infectious disease consultation was not performed timely. Allegations of negligence against the infectious disease doctor included failure to respond timely to request for infectious disease consultation. Allegations against the hospital included failure to properly obtain infectious disease consultation or request transfer.

During pretrial discovery, the plaintiff claimed $200,925 in past medicals and presented a life care plan with a payout of $11,946,320 over 52 years.

After the deposition of all parties, 3 of 4 defendants wanted to voluntarily pay the applicable medical malpractice cap of $1.7 million. The urologist refused to participate in any settlement. The plaintiff and the other 3 defendants reached a settlement, in which the 3 settling defendants would immediately pay $850,000 and the plaintiff would go to trial against the urologist who refused to settle. If the plaintiff lost or recovered less than the cap of $1.7 million, the settling defendants guaranteed an additional $850,000. If the plaintiff won against the defendant urologist, the plaintiff would recover $850,000 from him.

When the urologist learned of the settlement, he quickly mobilized to be included in the original settlement. The admitting internist and infectious disease doctor, who had the same insurance carrier, paid $906,666. The urologist, who was covered by a separate insurance carrier, contributed $340,000 to the settlement. The hospital, which was self-insured, paid $453,333.

 In cases with multiple defendants, there are any number of reasons why a plaintiff might be willing to accept less in settlement from 1 defendant but not another. Sometimes a plaintiff might be willing to accept less from 1 defendant in the hope or expectation that the plaintiff can recover substantially more money from a remaining tortfeasor.

Here, the total available recovery under the applicable malpractice cap was $1.7 million. To get to that number, the settling defendants and plaintiff put the risk of trial on the urologist, who did not want to participate in the settlement. If the urologist paid before trial with the other defendants, his loss was $425,000, but his exposure at trial would be $850,000. The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap.

"The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap," writes Acacia Brush Perko, Esq.

Urology malpractice consult: lawsuit claims delayed consult led to paralysis

The plaintiff’s decedent, a 67-year-old man, was admitted to the hospital through the emergency department. He had complaints of nausea, pain, and vomiting.

The admitting assessment was acute dehydration, secondary to a lithotripsy procedure he had the previous day to treat bladder stones. The complete blood count on admission was remarkable for low hemoglobin and hematocrit and elevated white blood cells. The patient was given fluids and pain medication for 18 days. He also received 2 doses of a powerful anticoagulant medication pursuant to the orders of the defendant urologist.

A change in the patient’s condition prompted a telephone order from the urologist for bed rest, to increase the IV rate to 150 cc’s per hour, and to contact the hospital physician on call for further orders.

The internist on call was called pursuant to the urologist’s order. The medical chart indicated that the internist gave telephone orders for an increase in the IV rate to 150 cc’s per hour, strict bed rest, and to apply a Posey vest (method used to restrain a patient) as needed. The internist later countersigned these orders.

At 6:45 AM the following morning, the patient’s condition deteriorated significantly. The internist was again called, and he left orders with the hospital nurses advising them to administer a diuretic and to have his partner, another internist assuming duties from him, examine the patient as soon as possible. The patient coded at 7 AM and was pronounced dead at 7:20 AM.

An autopsy revealed 2500 cc’s of blood in the patient’s lower abdomen caused by an extensive hemorrhage into the bladder wall, caused by an embedded bladder stone deep in the bladder wall. Apparently, the lithotripsy caused a bladder stone to become embedded into the bladder wall, commencing a slow bleed.

The patient’s wife sued the defendant urologist, the hospital, and the 2 internists for malpractice. She alleged that despite her husband’s deteriorating condition, all defendants failed to institute proper care, which caused him to bleed to death.

The plaintiff also contended that the orders attributed to the internist, supposedly at 11 PM, were completely inadequate and below the standard of care. She contended that at the time the internist was called, it would have been possible to reverse the effects of the anticoagulant medication, perform surgery, repair the bleed, and save her husband’s life.

The internist claimed that he never gave orders to the hospital nurse when called. Instead, he argued that he was not on call for the urologist, and if the urologist wanted a consultation from him, then the urologist needed to call him. Although the internist admitted he countersigned the orders, he testified that he did so in error.

The plaintiff claimed the urologist should have never ordered the anticoagulant medication and doing so was below the standard of care.

The urologist testified that he wanted an urgent consult from the internist. However, he agreed that his order, as taken down by the nurse, did not reflect that he was requesting an urgent consultation.

The decedent was 67 at the time of death. His wife sought damages for wrongful death and claimed between $85,000 and $200,000 in economic damages.

Prior to trial, the urologist was dismissed under confidential terms. The case proceeded to trial against the internists. The jury trial lasted 6 days. After 6 hours of deliberation, the 12-person jury, made up of 5 men and 7 women, returned a 10 to 2 verdict in favor of the defense.

The settling defendant urologist left an empty chair at trial. Generally, defendants stick together; one does not point the finger at the others. At a jury trial, the jury will be asked to apportion fault among all those whom the jury believes are at fault for the injury. For example, if the jury finds Defendant A 30% liable and Defendant B 40% liable, there is still 30% remaining. In that hypothetical, the jury could apportion that to the empty chair. In a medical malpractice case, that apportionment requires expert testimony that the empty chair defendant was negligent.

In this case, since the urologist was no longer in the case, the internists were able to argue that the outcome was the entire fault of the urologist. That may have made the difference in the jury in this case reaching a defense verdict in favor of the defense.

Stone embedded in bladder wall, causing slow bleed

Urology malpractice consult: Patient dies following lithotripsy procedure

A 43-year-old maintenance man was referred to the defendant general surgeon for a vasectomy and for exploration and possible removal of a penile lump. During surgery, the defendant surgeon viewed and diagnosed the lump as a sebaceous cyst. He then performed the vasectomy, without complication.

In a subsequent surgery, while he was attempting to excise what he saw as that cyst, he nicked the plaintiff’s urethra. The plaintiff testified that the surgeon told him afterward that “he may have nicked it,” but the surgeon denied ever making such a statement.

The plaintiff then experienced trouble urinating and was referred to a urologist. The plaintiff’s problems continued, with the thought that leaking urine from the nick caused a massive internal inflammation as well as a fistula. The plaintiff then underwent 8 surgical procedures, including urethral reconstruction and the insertion of an inflatable penile prosthesis.

After all his surgeries, the plaintiff was left pain free and able to urinate normally. However, approximately 2 inches of his urethra required reconstruction.

The plaintiff filed a medical malpractice complaint against the surgeon, alleging that he was negligent in diagnosing the lump as a sebaceous cyst and negligent in nicking the urethra. The plaintiff maintained that the lump was just a plaque formation that was the result of Peyronie disease and did not require surgical intervention.

Before the trial, the parties exchanged written discovery and participated in fact and expert depositions. In discovery, the plaintiff claimed past medical damages of $138,500, which did not include the cost of the surgery for the implantation of the penile prosthetic device, which was donated by a concerned charity.

The plaintiff also claimed the likely need for a future replacement prosthesis, estimated at a cost ranging from $25,000 to $75,000.

The plaintiff’s standard-of-care expert, a urologist from Stanford, testified at deposition that at a minimum, the surgeon should have consulted a urologist when he encountered the lump during the vasectomy. He opined that had the lump been properly diagnosed and treated, no surgical intervention would have been needed. He stated that a failure to consult the urologist was a breach in the standard of care and that nicking the urethra during the second surgery to remove the lump was also a breach in the standard of care.

The defendant’s experts testified at deposition that a misdiagnosis of the lump was not an unreasonable, negligent act, especially on the part of a general surgeon engaged to investigate and take decisive action to remedy it, and it certainly did not fall below the applicable standard of care. Given that this was the case, and given the difficulty of trying to remove that lump, nicking the urethra during that remedial action of removal wasn’t negligent, either.

Defendant moves to exclude opinions of urologist

Before the trial, the defendant moved to exclude the opinions of the plaintiff’s urologist from Stanford, arguing that because he was a urologist, he could not comment on the standard of care governing the surgeon defendant. The defendant lost that motion, at which point the plaintiff demanded $425,000 to settle. The defense refused and did not make any offer prior to trial.

At trial, the experts on both sides testified consistent with their pretrial depositions.

The jury deliberated for 5.5 hours and returned with a verdict of negligence against the surgeon and awarded $581,500 to the plaintiff. That award included past medical bills of $138,500, the plaintiff’s likely future medical bills of $75,000, $18,000 in past wage losses, and then $350,000 in past and future “pain, suffering, disability, disfigurement, and loss of enjoyment of life.”

 In some states, in order to be qualified to testify, experts rendering opinions on liability issues in a medical claim must practice in the same or substantially similar practice as the defendant. In these states, defense counsel may successfully exclude opinions from experts who are not qualified.

However, this case study is from a jurisdiction where the law on expert testimony is not as clear, requiring only that an expert rendering opinions on liability issues in a medical claim possess scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or determine a fact in issue. As a result, the defense was unable to exclude the plaintiff’s star witness, the urologist from Stanford, whose testimony carried the day.

A urologist should have been consulted, an expert for the plaintiff said.

Acacia Brush Perko, Esq.

Articles

Delayed referral to urologist led to death; jury awards $2.2 million

Urology malpractice consult: lawsuit claims delayed consult led to paralysis

Urology malpractice consult: Patient dies following lithotripsy procedure

Urethra nicked during excision procedure