 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.

A 52-year-old male patient presented to his urologist with complaints of flank pain and blood in his urine. The urologist referred the patient to the defendant radiologist for an intravenous x-ray test to reveal the cause. The radiologist performed the test and reported findings consistent with a kidney stone. The urologist then treated the patient for a kidney stone.

On a follow-up visit, the patient reported that the symptoms had resolved. Fourteen months later, he received a diagnosis of metastatic renal cell carcinoma and ultimately died as a result of the disease.

The patient’s estate filed a lawsuit and claimed the failure of his medical providers to timely diagnose his condition contributed to his death.

The matter proceeded to trial. At trial, the plaintiff’s experts testified that the defendants were negligent in failing to timely diagnose the disease. The plaintiff’s expert radiologist testified that the defendant radiologist failed to report findings suggestive of the disease. The plaintiff’s expert urologist testified the defendant urologist breached his duty to the patient in failing to personally review the radiologist’s tests or order follow-up tests to ensure the accuracy of the initial findings.

The radiologist and urologist both denied any wrongdoing and argued that the man’s death was imminent by the time he presented for their care. Specifically, the defendants’ experts all testified that the defendants met the standard of care. The defendants’ experts further testified that the decedent’s symptoms and test results were consistent with the diagnosis of kidney stones and that the resolution of his symptoms supported their findings. The defendants additionally argued that the disease had most likely metastasized throughout the patient prior to his initial presentation and, regardless of their findings, his death was imminent.

Following a 4-hour deliberation, the jury returned a defense verdict, finding the defendants met the standard of care.

When there are multiple defendants at trial, defendants typically present a unified defense. That strategy worked well in this case, in which the jury heard from defense experts who consistently testified in support of the defendant radiologist and urologist— ultimately resulting in a defense verdict.

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"When there are multiple defendants at trial, defendants typically present a unified defense," writes Acacia Brush Perko, Esq.

Allegation of failure to timely diagnose cancer leads to defense verdict

A 43-year-old woman presented to a local emergency department at approximately 9 AM with complaints of lower back and genital pain since early that morning. A CT scan revealed inflammation of the kidney and a 2-mm kidney stone.

A urologist saw the patient around 3:20 PM and admitted her to the hospital. After midnight, a nurse noted a low oxygen saturation and that the patient was ashen in color. The patient was given 3 liters of oxygen. The medical chart also recorded that her blood pressure had dropped since admittance. Early the next morning, it was noted that the patient’s urine output was low, and her oxygen saturation level continued to drop.

The urologist ordered a chest x-ray, blood gasses, and an electrocardiogram. At approximately 9:30 AM, the patient told the staff she could not breathe. The urologist examined the patient and noted that her color was dusky and that she was in respiratory distress. The patient became unconscious and a code was called. She was in severe respiratory distress and had metabolic acidosis. She was unresponsive to treatment, and blood tests were ordered for sepsis. However, she died at approximately 1 PM. An autopsy determined that she had a kidney infection, which led to septic shock and death.

The patient’s estate brought suit against the hospital nurse and urologist, alleging that the nurse failed to inform any physician of low oxygen saturations and that the urologist failed to diagnose and treat the patient in a timely manner.

The hospital nurse and urologist denied any negligence and claimed they met their respective standards of care. The urologist maintained that as soon as he learned of the patient’s low oxygen saturation and low urine output, he met the standard of care by ordering additional testing. For her part, the nurse claimed it was not necessary to contact the doctor to inform of the low oxygen saturation. A month before trial, the hospital nurse settled for $750,000. The plaintiff’s case against the urologist continued. On the eve of trial, the plaintiff dismissed his case entirely.

When there are multiple defendants and one settles prior to trial, the remaining defendant has an opportunity to use the “empty chair” defense, in which the defendant tries to convince the jury that a third party is entirely to blame for the plaintiff’s losses. Here, had trial proceeded against the urologist, the empty chair defense would likely have been used.

The patient had presented to the ED with inflammation of the kidney and a 2-mm stone.

Urology malpractice consult: Alleged failure to diagnose, treat abscesses leads to settlement

On October 23, 2015, the plaintiff, a 49-year-old man, presented to the emergency department complaining of back and flank pain. A physician and a third-year resident treated him. The patient underwent a CT scan, which confirmed the presence of kidney stones.

In his report, the interpreting radiologist also described the presence of a 2.7-cm mass in the bladder. The resident informed the patient only about the kidney stones. The patient was discharged, with written instructions describing “kidney stones” and advising him to follow up with a urologist within 5 days. The patient passed the kidney stone the next day, and never followed up with a urologist. The patient had no further symptoms until the end of 2016, when he began experiencing incontinence and erectile dysfunction. By February 2017, the patient finally saw a urologist; the urologist sent him for an ultrasound.

The radiologist interpreted the 2017 ultrasound and compared it to the 2015 CT scan. The radiologist reported that the mass was now considerably larger. It was so large that it occupied almost the entirety of the bladder. A biopsy confirmed the mass was malignant.

In May 2017, the patient began chemotherapy to shrink the mass. A cystoscopic procedure was attempted, but the mass was too large to be extracted. In July of that year, the patient’s bladder and prostate were removed. To replace his bladder, a piece of his colon was removed and sutured to create a pouch that was then connected to his ureter and urethra.

The patient and his wife brought a medical claim against the hospital, emergency department physician, and the resident, claiming the defendants failed to inform the patient about the mass seen on the 2015 CT, which led to delayed cancer diagnosis and subsequent surgeries, including removal of his bladder and prostate. The defendants all denied negligence, and the matter proceeded to trial.

Patient testifies about bladder issues, erectile dysfunction

At trial, the patient testified that no one informed him about the mass seen on the 2015 CT scan during the emergency department visit. He testified about his bladder issues and how he suffered erectile dysfunction. He described intense mental distress, for which he had sought treatment, a disruption of his normal activities, and occasional incontinence. He sought damages for past and future pain and suffering.

The patient’s wife testified that no one informed her about the mass while they were at the hospital in 2015. The wife also testified about her husband’s erectile dysfunction and its consequent problems—such as the couple’s lack of intimacy—that affected the marriage. She sought damages for loss of consortium.

The plaintiff’s emergency department physician expert testified that the defendants were negligent for failing to verbally tell the patient in an adequate and transparent manner about the mass finding on the CT scan, and for failing to ensure that he understood the finding. At the time of trial, the patient continued to be monitored by his urologist. The patient’s treating urologist explained how the size of the tumor at the time of diagnosis prevented simple local resection.

The plaintiff’s urology expert testified that the patient remained at risk of developing recurrent cancer or metastatic disease. The urologist also testified as to metabolic abnormalities associated with the makeshift bladder, which could lead to other problems. The urologist expert testified that had the malignant mass been diagnosed properly in October 2015, it would have been removed cystoscopically, and the patient’s bladder and prostate would have been saved.

During the defense presentation, the defense emergency physician expert testified that the defendants’ care was reasonable, that the patient was informed in writing of the kidney stones, told about the mass, and instructed to follow up with a urologist. The defense expert further testified that patients are expected to follow their physicians’ orders, and that the patient was comparatively negligent for failing to follow the instructions to see a urologist.

Following a 7-day trial, the jury returned a $10 million verdict for the plaintiff. The jury apportioned fault and found the resident 60% liable, the emergency department physician 25% liable, and the patient 15% liable. Accordingly, the award was reduced to $8.45 million.

 Many states allow a plaintiff who is partially at fault to still recover, so long as their fault does not exceed the fault of defendants. In this instance, the jury found the patient partially to blame for his failure to follow his physician’s instructions. But, because his fault did not exceed that of the defendants, he was still entitled to recover on his medical claim.

 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.

Jury apportions fault among the plaintiff as well as the defendants.

Was this patient with stones properly informed of bladder mass?

A 71-year-old man was seen by his primary care provider for a prostate-specific antigen (PSA) screen on December 5, 2011. The result was a level of 5.33. The patient’s primary care physician referred him to a urologist.

On April 5, 2012, the patient presented to the urologist for the elevated PSA. The urologist performed a history and physical exam. The urologist believed that the patient’s modestly elevated PSA was secondary to an enlarged prostate, otherwise described as benign prostatic hyperplasia (BPH). The patient was given some medication and told to return in 90 days for a repeat PSA study.

The patient did not return to the urologist until December 5, 2013. By that time, the patient’s primary care provider had repeated PSA studies in August 2013 and again in October 2013, which returned at levels of 6.67 and 5.8, respectively. At the second visit, the urologist discussed a microwave procedure to shrink the prostate. The urologist relied on the patient’s description that the values were initially high and then fell back slightly, but no repeat PSA study was performed. The urologist placed the patient back on finasteride and told him to return in 90 days.

The patient returned to the urologist a third time on April 16, 2014, and reported that his underlying urological problems had worsened. The urologist did not get a repeat PSA but concluded that the patient’s symptoms were caused by BPH. The urologist’s office subsequently carried out a microwave procedure on May 21, 2014 and told the patient to return for a follow-up. The patient never saw that urologist again.

In September 2014, the primary care provider obtained a PSA that reported out at level 8.8. The primary care provider advised the patient to see a urologist again.

In February 2015, the patient saw a second urologist who performed a PSA test, which returned at level 37. A biopsy proved prostate cancer, with a Gleason score of 7. Further evaluation and imaging studies in March 2015 revealed widespread metastatic disease to the ribs, sacrum, and spine. He was ultimately diagnosed with stage IV terminal prostate cancer.

The patient sued his first urologist, claiming medical malpractice. He claimed that the urologist was negligent for not doing a repeat PSA test and not offering a biopsy at any time. The urologist denied negligence and further denied that anything he did or failed to do caused the patient’s metastatic cancer.

At trial, the patient-plaintiff contended that he would have been completely curable with timely diagnosis and treatment. However, the jury heard testimony that the patient’s life expectancy was approximately 18 to 24 months.

The defendant-urologist argued that by not returning 90 days after the initial visit in April of 2012, he was deprived of finding out how the patient’s PSA did while the patient was on finasteride.

Experts for the defense testified that when a PSA is elevated secondary to BPH as opposed to prostate cancer, finasteride typically cuts the PSA in half and that when the PSA does not fall, despite a patient taking finasteride, urologists strongly consider prostate cancer as an alternative explanation for the abnormal PSA. The defendant-urologist thus contended that if the patient had returned within a reasonable amount of time, it was likely that the PSA would have been unchanged because it was still in the 5 to 6 range in August 2013 and October 2013. All experts at trial agreed that as of April 2012, the patient likely had cancer for years. But because the patient did not timely return after the initial urology visit, the urologist did not have an opportunity to conduct a PSA, offer a biopsy, or otherwise evaluate the patient.

Following an 8-day trial, the jury deliberated for 1.5 days, and returned a defense verdict for the urologist, finding no negligence.

Many states recognize the defense of contributory negligence in medical malpractice cases. Disregarding a doctor’s orders can be patient negligence. Failing to provide an accurate patient history may also constitute patient negligence. In this case, the defendant-urologist could argue that the plaintiff-patient was negligent for failing to timely return for a follow-up. The jury weighed and considered this evidence in deliberations, which likely affected their defense verdict.

The provider said the patient failed to timely return for follow-up.

Acacia Brush Perko, Esq.

Articles

Allegation of failure to timely diagnose cancer leads to defense verdict

Urology malpractice consult: Alleged failure to diagnose, treat abscesses leads to settlement

Was this patient with stones properly informed of bladder mass?

Urologist claims patient negligence in defense of malpractice lawsuit