 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.

Acacia Brush Perko, Esq, writes, "A physician proposing a treatment has a duty to provide a patient with enough information about material risks and available options to enable the patient to give informed consent."

On August 22, 2007, a 70-year-old man presented to a urologist complaining of difficulty urinating, a weak urinary stream, and the sensation that he could not empty his bladder. A prostate ultrasound revealed a moderately enlarged prostate gland and significant residual urine. The patient alleged that the urologist recommended various conservative treatments that did not reduce or resolve his symptoms.

After a follow-up evaluation, the patient underwent a cystoscopy and internal urethrotomy with a holmium laser. The cystoscopy showed the patient’s prostate as having trilobar hypertrophy with obstruction. The bladder was hypotonic and heavily trabeculated, and there was a moderately large diverticulum on the left posterior inferior wall.

The urologist recommended transurethral microwave thermotherapy, an in-office treatment involving the gentle application of heat to the prostate. According to the patient, the urologist provided him with a brochure about the treatment. However, the patient claimed that neither the urologist nor the brochure disclosed or described any associated risks, complications, dangers, contraindications, or warnings. The patient also alleged that the brochure indicated the procedure was to be performed by a qualified physician and not by any other medical personnel.

On October 19, 2007, the patient underwent treatment. The patient claimed that the treatment had been administered by a nurse, not a qualified physician, and that the urologist had not been present when it was rendered. The patient further claimed that the nurse performed the treatment improperly, resulting in internal injuries that worsened his urinary problems and created a permanent need for a catheter to urinate.

The patient sued for negligence and medical malpractice. The patient’s counsel alleged that the urologist had failed to properly inform the patient of the risks and complications associated with the treatment. It was further alleged that the urologist, following the procedure, stated that the patient would be “great for a thousand years,” which falsely assured him that there were no risks associated with the procedure.

The patient’s expert testified that the treatment is not effective for cases involving residual urine in excess of 200 cm3, prostate volume of less than 30 cm3, and patients without normal bladder function. The expert argued that the patient’s residual urine quantity well exceeded 200 cm3,his prostate volume was 27.05 cm3, and his bladder function was “hypotonic.” The expert further criticized the urologist for not having a qualified physician render the therapy. The expert concluded that the patient was not a good candidate for the procedure and that he was never properly informed of the relevant risks, which, if disclosed, would have led him to refuse the treatment.

The urologist claimed that the patient came to him to avoid surgery previously recommended by other urologists. The urologist claimed that the patient did not want to undergo surgery for several reasons, including underlying medical problems that made surgery unfavorable. To avoid surgery, the urologist advised the patient of the transurethral microwave option and advised that it would be the only treatment, short of surgery, that could provide relief. The urologist claimed that he thoroughly explained the recognized risks associated with the treatment and that the patient was not an “optimal” candidate for the therapy. However, there was a possibility that the treatment could provide sufficient improvement for the patient to avoid surgery. Finally, the urologist stated that he and his LPN were able to administer the treatment without problem or difficulty.administered the treatment with his LPN without problem or difficulty.

Experts for the defense testified that the urologist did not veer from the standard of care by offering a safe alternative to surgery. The defense experts both opined that the treatment administered did not hurt the patient. The treatment had simply not been successful, which is often the case.

After a 5-day trial and 2 hours of deliberation, the jury rendered a verdict for the defense, finding that the urologist had not been negligent in treating the patient.

A physician proposing a treatment has a duty to provide a patient with enough information about material risks and available options to enable the patient to give informed consent. This includes the potential risks and possible benefits of each different treatment option. Then, the physician must receive consent from the patient before embarking on any treatment option.

Outside of emergency situations, physicians cannot substitute their judgment for the patient’s consent. If a physician fails to obtain informed consent, he or she may be liable for medical malpractice if a reasonable person in the patient’s position would have withheld consent had the information been presented.

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"The patient’s counsel alleged that the urologist had failed to properly inform the patient of the risks and complications associated with the treatment," writes Acacia Brush Perko, Esq.

Patient undergoing BPH procedure sues for negligence and malpractice

On May 23, 2013, a 54-year-old man presented to a urologist with pain in his right testicle. An ultrasound showed damage to the testicle, including scarring and atrophy. Approximately 15 years earlier, the patient had been accidentally kicked in the testicle by his daughter, who has cerebral palsy.

The urologist determined the patient would benefit from having the right testicle removed, as well as having the right spermatic cord and left vas deferens removed (resulting in a vasectomy of the left testicle). However, during the June 11 procedure, the urologist improperly removed the left testicle and performed a vasectomy on the right testicle.

The following day, the urologist informed the patient that the wrong testicle may have been removed. An ultrasound was later performed and confirmed the right testicle remained. The patient did not return to the urologist, but instead consulted with his primary care physician. After his swelling diminished, his pain and discomfort returned to his right testicle.

The patient-plaintiff filed suit against the urologist and his employer hospital, alleging the urologist performed the surgery when it was not proper for him to do so and performed the surgery in a negligent and reckless manner, amounting to medical malpractice. The plaintiff alleged that he was fearful that he would have to undergo another surgery and removal of his right testicle, and that he would require hormone therapy for the remainder of his life. He further alleged that prior to surgery, if something came into contact with his right testicle during intercourse, it would cause him severe pain that would cause him to lose his erection. The plaintiff alleged that this occurred more frequently following surgery. He further alleged that the surgery caused him embarrassment, anxiety, and depression, for which he required 6 months’ counseling.

During a 3-day jury trial, the plaintiff’s expert in urology maintained that the urologist failed to offer alternative treatments before proceeding with the drastic option of removing the testicle. Oral medication, spermatic cord injections, and microsurgery were all less-invasive options the urologist should have considered and pursued before the orchiectomy, the expert stated.

According to an operating room nurse, she had returned to the operating room during the surgery when she looked at the pathology report, which noted that the specimen removed was the left testicle. She then looked at the consent form, which noted a right orchiectomy. To reconcile the discrepancy, she approached the urologist, who confirmed the contents of the pathology report and consent form. He then backed away from the operating table and sat down on the floor for a period, according to the nurse. He eventually got up, put on new gloves, resterilized himself, and completed the surgery.

The plaintiff’s counsel cited the urologist’s postoperative report, which stated, “At this point, it appeared the left testicle and cord may have been removed instead of the right one.” The plaintiff’s expert in urology testified that the urologist removed the wrong testicle because he failed to track or palpate the right spermatic cord up into the body, which the urologist admitted he failed to do. The right spermatic cord exits the external ring and is approximately 1 in to the right of the penis. If the physician tracks the cord, he will know whether he is on the left or right side. The expert concluded that the urologist was reckless when he assumed he cut the right spermatic cord without confirmation.

In defense, the urologist testified that he noticed there was a problem when he attempted to perform the left vasectomy and the left testicle was missing. He maintained that he believed he removed the right testicle, as he removed the testicle that was on the right side of the scrotum. He testified that the testicle had a spermatic cord that led to the left side of the body. On cross-examination, the urologist conceded that if he, in fact, removed the left testicle when the right testicle was planned for removal, that he breached the standard of care.

The plaintiff’s expert in urology refuted the urologist’s explanation that the left spermatic cord crossed with the right. According to the expert, that is anatomically impossible, as the scrotal septum prevents the testicles from moving to different sides, in addition to the fact that the spermatic cords are not long enough to allow such an occurrence.

The hospital admitted the urologist had been an agent of the hospital at the time of the surgery, and it was responsible for any negligence committed. After a 3-day trial, the jury deliberated 80 minutes before rendering a plaintiff’s verdict, finding that the urologist breached the standard of care and proximately caused the plaintiff injury. The jurors awarded $870,000.

Although the urologist’s testimony that he thought he was removing the right testicle may have been believable to some jurors, conceding that he breached the standard of care in removing the wrong testicle likely sealed his fate.

Expert states less-invasive options should have been considered.

Patient alleged doctor removed wrong testicle during surgery

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.

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.

Acacia Brush Perko, Esq.

Articles

Patient undergoing BPH procedure sues for negligence and malpractice

Patient alleged doctor removed wrong testicle during surgery

Man sues after delayed diagnosis of prostate cancer

Lawsuit alleges urethral injury following ED visit