 is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters.

Acacia Brush Perko, Esq.

The plaintiff, age 55 years and an operator of heavy equipment, underwent a regular physical examination as required by his employer and was told that his prostate-specific antigen (PSA) level was abnormal. He was told to see his regular physician, the defendant general practitioner (GP).

The defendant GP tested the plaintiff and came up with abnormal results. The defendant GP assured the plaintiff that he did not have cancer and referred him to the defendant urologist for further testing. The defendant urologist came up with abnormal results but assured the plaintiff that he did not have cancer. The defendant urologist did not order follow-up biopsy testing but referred the plaintiff back to the defendant GP for further care and monitoring.

The defendant GP continued to monitor the plaintiff’s PSA level through testing for the next 2 years. During this time, the plaintiff’s PSA results continued to rise. At the plaintiff’s next employment physical, his results were higher than his prior screenings. The plaintiff was again referred to the defendant GP, who referred the plaintiff to a different urologist because the defendant urologist was no longer on the plaintiff’s insurance plan.

The new urologist ordered a PSA test, which showed results that were significantly abnormal. He immediately scheduled the plaintiff for a prostatectomy but, before the surgery could take place, it was determined that the plaintiff’s cancer had metastasized throughout his body and was now inoperable. The plaintiff was given 4 to 10 years to live rather than the 21 additional years he contended he could have expected had the cancerous prostate gland been removed before it metastasized.

The plaintiff contended that the defendant GP’s conduct was below the standard of care when he failed to again refer the plaintiff back to the defendant urologist when the plaintiff’s PSA test results continued to rise during the following 2 years.

The plaintiff alleged the defendant urologist failed to perform standard biopsy testing upon learning that the plaintiff’s PSA test results were abnormal. He alleged that biopsy would have revealed the plaintiff’s prostate cancer in time to have performed prostate removal, thereby curing the plaintiff of his cancer. The plaintiff alleged this conduct was below the standard of care for physicians specializing in urology.

The defendant GP claimed that he had a right to rely on the report of the defendant urologist and had no duty to inform the defendant urologist of the plaintiff’s rising PSA test results nor to refer the plaintiff back to the defendant urologist. The defendant urologist claimed that PSA testing, biopsies, and other testing procedures are unreliable predictors of prostate cancer and that even prostatectomy is not a foolproof cure for prostate cancer.

The plaintiff’s claimed injury was 3 years of undetected prostate cancer, which spread and metastasized throughout his body, reducing his life expectancy. As a result of the delayed diagnosis, the plaintiff had to undergo radiation and hormonal therapy treatments to slow the progress of the cancer. As a result of the diagnosis, the plaintiff was unable to return to work and would be on pain medications for the remainder of his life. The plaintiff claimed $141,000 in past medical costs, $370,000 in future medical costs, $30,000 in past lost earnings, and $330,000 in future lost earnings. The plaintiff’s wife sued for loss of consortium, claiming $250,000 for past pain and suffering, $250,000 in future pain and suffering, and $250,000 for a future wrongful death claim.

The parties engaged in pretrial settlement negotiations. The plaintiff first demanded $1.6 million. The defendant GP refused to make an offer. The defendant urologist refused to make an offer without a contribution by the GP. Negotiations continued. Although the defendant GP never consented to settlement, the parties eventually settled for $1,004,500. The defendant GP’s insurance company contributed $29,000, the maximum amount allowed under the policy without the insured’s consent, and the defendant urologist’s insurance company contributed the remaining $975,500.

Under most types of liability insurance, the insurance company has the contractual right to settle or defend the case as it sees fit. The insured normally will have an opportunity to provide input, but the insurance company typically has no obligation to get the insured’s consent or approval. A common exception to this involves professional liability policies, such as medical malpractice or architects’ errors and omissions coverage, under which consent of the insured usually is required for any settlement. In this case, the policy had an exception, which allowed the insurance company to settle up to a certain amount without the insured’s consent.

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Insurance company contributed to settlement without insured’s consent.

Man sues after delayed diagnosis of prostate cancer

On February 26, a 56-year-old man presented to the emergency department (ED) with a chief complaint of fever, chills, and body aches for 2 days. His prior medical history was positive for a urethral stricture, for which he began receiving treatment when he was aged 24 years. Prior to this ED visit, the patient underwent several procedures to dilate his urethra and had been seen in the ED on numerous occasions for urinary tract infections. Several attempts were made in the ED by the nursing staff to catheterize the patient, without success. The patient was given intravenous fluid and voided; however, he began to demonstrate tachycardia and hypotension.

The patient was admitted to the hospital due to a suspected urinary tract infection. Urine and blood cultures were ordered, and the patient was started on ceftriaxone (Rocephin) for possible sepsis. His admitting diagnoses included dehydration, urinary tract infection, hypotension, and rule-out sepsis.

The patient was seen by the attending physician. After testing and 5 days of hospitalization, the patient was discharged from the hospital by the attending and given instructions to continue antibiotics and follow-up with his primary care physician.

Five days later, the patient was seen by a urologist, with complaints of hematuria and difficulty voiding. He reported a recent injury to his urethra from the ED visit on February 26. The urologist attempted to perform a cystoscopy in hopes of examining and dilating the urethra. However, he was unable to successfully pass the scope beyond the stricture due to the presence of multiple false passages.

The urologist opted to take the patient to the operating room and insert a suprapubic catheter to be kept in place as long as necessary to allow for decreased swelling and healing of the urethra, which was 7 months.

The patient sued the ED physician, the attending physician, and the hospital, claiming malpractice and urethral injury. The ED physician and hospital were dismissed under confidential terms prior to trial. The case proceeded to trial against the attending physician only.

According to the patient, the attending physician negligently failed to request a consult with a urologist during his hospital stay and failed to refer him for an emergent urology consult on discharge. Had he done so, the patient claimed he would not have needed the suprapubic catheter that stayed in place for 7 months.

The patient’s expert internist opined that the attending physician fell below the standard of care due to his failure to be aware of the nature and extent of the urethral injury suffered at the time the patient was admitted to the hospital. The expert testified that the attending physician negligently failed to perform a genitourinary examination of the patient at any time during his stay, negligently failed to request a consult with a urologist while the patient was at the hospital, and did not refer the patient to a urologist at discharge. The patient’s expert further testified that had a urologist been consulted, additional attempts at placing a Foley catheter using a guide wire would have been made in effort to relieve urinary retention and avoid the need for the suprapubic catheter.

Defense counsel for the attending physician argued that his client met the standard of care and that nothing he did or failed to do caused the patient’s injury. The defense expert testified that prior to the patient’s discharge, the attending physician ordered a renal ultrasound and another set of blood and urine cultures. The renal ultrasound revealed a distended bladder with an irregular posterior bladder wall. In addition to the orders for laboratory studies, the attending physician adjusted antibiotic therapy. During the next 3 days, the patient responded well to the antibiotic therapy, and his white blood cell count gradually returned to normal. The defense expert further testified that the attending physician complied with the standard of care. He testified that the primary reason for hospital admission was a life-threatening urinary tract infection that was adequately treated and that the standard of care did not require a urology consult under the circumstances because any further attempts at catheterization would have been contraindicative due to the patient’s serious infection.

The defense’s urologist opined that the patient had a chronic problem with a urethral stricture and noted that the natural history of chronic strictures involves recurrent procedures designed to dilate the stricture and, at times, require placement of a suprapubic catheter to allow inflammation around the stricture to resolve.

After a 7-day trial and jury deliberations of nearly 2 days, the jury returned a verdict 10-2 for the plaintiff on negligence and 12-0 for the defense on causation.

: In a malpractice case, a plaintiff must prove both negligence and causation. Here, the jury found the plaintiff proved his negligence case but failed to prove that the negligence caused the plaintiff’s injury. Ultimately, this case resulted in a win for the defense.

Plaintiff claims defendant negligently failed to order urology consult.

Lawsuit alleges urethral injury following ED visit

A 65-year-old man presented to his urologist with symptoms of an enlarged prostate. He agreed to allow the urologist to perform a transurethral resection of the prostate (TURP) to remove half of the prostate. The other half of the prostate was to be removed at a later time. Prior to the TURP procedure, the urologist performed an open procedure for the removal of bladder stones. The urologist then performed the TURP procedure. After half of the enlarged prostate had been removed, a lab assessment indicated that decedent’s sodium levels were dropping. Nonetheless, the defendant proceeded to remove the other half of the enlarged prostate.

Approximately 50 minutes later, lab results reportedly showed that decedent had experienced a life-threatening decrease in sodium levels (hyponatremia) and critically elevated levels of ammonia (hyperammonemia). As a result, the patient allegedly suffered brain damage. He lapsed into a coma that lasted until his death 9 months later.

The patient’s wife brought a medical malpractice suit against the urologist, alleging that the urologist negligently performed the TURP procedure. According to the plaintiff, there is a time window of safety within which a TURP procedure can be performed with a high degree of success, both for correction of the underlying medical problem and with very little risk to the patient. However, if the TURP procedure goes longer than the window of safety, the patient is put at undue risk for several complications unique to the TURP procedure as distinct from an open prostatectomy, including dilutional hyponatremia and hyperammonemia.

The plaintiff also pointed out that the urologist determined the patient also had bladder stones and did an open procedure for removal of the stones. The plaintiff contended that extending the open procedure to remove the prostate would have been simple to do, had little to no effect on the healing time for the patient because an open procedure had already commenced, and would have avoided all the risks associated with the TURP procedure.

Still, the urologist elected to proceed with a TURP procedure after open removal of the bladder stones, according to the plaintiff. At the end of the safety window, the urologist performed a lab assessment that confirmed that the patient’s sodium was dropping. Even though the prostate was obviously greatly enlarged and was at the end of the window of safety, the urologist had removed 1 half of the prostate, and had the patient’s consent to terminate the procedure and return at a later time to compete the procedure, the urologist forged on into an allegedly unnecessary dangerous zone.

Approximately 50 to 55 minutes later, the physician drew lab values again that showed that the patient had experienced a significant and life-threatening decrease in sodium levels due to absorption of excess amounts of irrigant used in the unnecessarily prolonged TURP procedure. The patient also experienced critically elevated ammonia levels due to metabolism of the glycine irrigant.

The plaintiff alleged that her husband suffered brain damage in the course of reversal of the hyponatremia. At the time of his death, he incurred medical expenses of approximately $1,000,000. The decedent was survived by his wife, 5 adult children, and 21 grandchildren.

The defendant urologist contended that his care was within all standards of care and denied any negligence. The case proceeded through pretrial discovery, and the parties agreed to participate in private mediation. The case resolved at mediation for $3,500,000.

Mediation offers parties an alternative venue for resolution outside the courtroom. There are some cases that should be tried and others that may be better suited to resolution through private negotiation or mediation. If settlement is reached at mediation, that settlement eliminates parties’ time-consuming and resource-draining participation in pretrial discovery, potential disclosure of personal and proprietary information, commitment of personal time, ongoing legal fees and expenses, unpredictability of verdict and judgment at trial, and unpredictability of appellate review of trial. Alternatively, mediation and settlement offers immediate conclusion and terms of resolution, which are unavailable through court. In this instance, mediation allowed the parties finality and closure.

Lawsuit was resolved at mediation for $3,500,000.

TURP allegedly results in brain damage, death

On October 18, at approximately 1 PM, a 67-year-old male patient 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 he had a day earlier 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 throughout October 18. He also received 2 doses of a powerful anticoagulant pursuant to the orders of his urologist.

At 11 PM, a telephone order from the urologist was transcribed. It advised bed rest for the patient, said the IV rate should be increased to 150 cc’s per hour, and asked that the physician on call be contacted for further orders. The internist on call was contacted pursuant to the urologist’s order. The patient’s chart indicated that the internist gave telephone orders for an increase in the IV rate to 150 mL per hour, strict bed rest for the patient, and application of a posey vest as needed. The internist later countersigned these orders.

At 6:25 AM the following morning, the patient’s condition deteriorated significantly. The internist was again called. He left orders advising the hospital nurses to administer a diuretic and to have his partner, another internist, 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 mL of blood in the patient’s lower abdomen caused by an extensive hemorrhage into the bladder wall. The lithotripsy had caused a bladder stone to become embedded deep in the bladder wall, commencing a slow bleed.

The patient’s widow was appointed his administrator. She sued the urologist, the urologist’s health care group, the hospital, and the internist, alleging medical malpractice. The widow argued that despite her husband’s deterioration, all defendants failed to institute proper care, causing him to slowly bleed to death.

The plaintiff further contended that the orders attributed to the internist in the hospital chart, supposedly having been given at 11 PM October 18, were inadequate and below the standard of care. She argued that at the time the internist was called, it would have been possible to reverse the effects of the anticoagulant medication, perform surgery to repair the bleed, and save her husband’s life.

The internist testified during deposition that he never gave orders to the hospital nurses when called. He said he was not on call for the urologist, and that if the urologist wanted a consultation from him then the urologist needed to call him. The internist admitted countersigning the orders. The urologist testified during deposition that he wanted an urgent consultation from the internist, but agreed that his order, as taken down by the nurse, did not reflect the fact that he was requesting an urgent consultation.

The patient’s widow claimed between $85,000 and $200,000 in economic damages. After a 6-day jury trial, 5 men and 7 women returned a 10-to-2 defense verdict. Prior to trial, the hospital was dismissed as a defendant for a waiver of costs. Additionally, the urologist was dismissed as a defendant with prejudice under confidential terms.

: When a plaintiff dismisses a defendant prior to trial and that dismissal is “with prejudice,” the plaintiff is barred from ever again bringing that claim in any court. Contrast this with a dismissal “without prejudice,” where the plaintiff may subsequently bring their claim in another court. Generally, when a settlement is reached, a settling defendant will require that as part of the agreement all claims against him be dismissed with prejudice to bring an end to the controversy. Here, the urologist secured, under confidential terms, a dismissal with prejudice, meaning the widow could never bring her claims against him in any other court. Because the hospital had also been dismissed, the case proceeded only against the internist and the internist’s medical group at trial.

Widow claims between $85,000 and $200,000 in damages.

Acacia Brush Perko, Esq.

Articles

Man sues after delayed diagnosis of prostate cancer

Lawsuit alleges urethral injury following ED visit

TURP allegedly results in brain damage, death

Urologist and internist sued after patient’s death from slow bleed