Acacia Brush Perko, Esq.

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.

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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.

Urethra nicked during excision procedure

In the 1990s, the plaintiff, a male computer consultant in his mid-60s, started having mild lower urinary tract symptoms with urination one to three times nightly and minimal urinary bladder residual. His prostate was enlarged by ultrasound examination, but since his symptoms were not progressive, the defendant urologist advised him that surgical intervention was not warranted.

In early 2003, the defendant medical device manufacturer received FDA approval to distribute a device that used microwaves emitted from one portion of a catheter inserted into the patient’s bladder to burn out portions of the prostate from the inside, a procedure designed to remove prostatic tissue obstructing the flow of urine without a surgical procedure.

After FDA approval, the defendant distributor approached the urologist and sold him one of the devices. The defendant proctor performed two microwave prostate removals with the urologist, and then issued a certificate on behalf of the manufacturer and distributor, indicating that the urologist had been fully trained and was competent to use the device without further supervision.

Lack of emergent VCUG leads to costly settlement

The urologist then performed an unsupervised microwave prostate removal on the plaintiff using the device. The plaintiff left the urologist’s office in considerable pain and then experienced massive urinary incontinence, requiring the use of a diaper.

Over the next 6 months, the urologist performed two other surgeries on the plaintiff, seeking to dilate strictures of the urethra.

The plaintiff alternated between frank urinary incontinence, requiring diapers, and bladder outlet obstruction, requiring self-catheterization.

The plaintiff then sought further opinions, and it was determined that his external urethral sphincter was damaged beyond repair and that he needed the implantation of a prosthetic urethral sphincter and resection of the portion of the urethra that appeared irreversibly strictured.

Claiming physical damages, the plaintiff sued the urologist for medical malpractice (negligent treatment), the manufacturer and distributor for product liability (design defect, negligence, fraud, failure to adhere to FDA requirements of approval), and the proctor for negligent training.

The urologist contended that, at all times, he was willing to undergo any training program that the manufacturer or distributor recommended and that he used the microwave device at all times exactly as instructed by the proctor and by the literature given to him.

The manufacturer and distributor contended that the FDA did not explicitly require the exclusion of patients with prior strictures.

The manufacturer and distributor also contended that the Supremacy Clause precluded the claiming of any design defects in a lawsuit brought under state law when the FDA had approved the design and in fact precluded any lawsuits in tort under state law. The only recourse for the plaintiff, according to the manufacturer and distributor, was a complaint regarding noncompliance with FDA conditions of approval with the FDA having exclusive jurisdiction over any such litigation.

The manufacturer and distributor also claimed that the educational materials had been sent to and received by the urologist and that he was competent to proceed using the product without further supervision.

Before trial, the urologist settled out for $200,000. A week before trial, the judge granted the remaining defendants’ summary judgment, ruling that the Supremacy Clause, combined with FDA approval of the product and education program, pre-empted any and all state causes of action in tort.

The plaintiff appealed. Just before the reply brief was due, the manufacturer and distributor resolved the case for $195,000 with the plaintiff.

IPP suit hinges on expert’s lack of credibility

 The judge and jury have different functions. Judges decide matters of law, and juries decide questions of fact. The civil rules allow a party to move for summary judgment prior to trial, asking the judge to rule that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. If granted, a case will not proceed to trial.

Here, the remaining defendants, the manufacturer and distributor, moved for summary judgment, which was granted. The plaintiff appealed that decision to the higher court, asking the appellate court to reverse the trial court’s decision. If successful, this would have resulted in a remand and trial.

Faced with the potential of protracted litigation, a likely sympathetic plaintiff, and the uncertainty of what a jury would do with the facts of the case, the manufacturer and distributor chose the safe bet of a settlement short of trial.

"The urologist contended that, at all times, he was willing to undergo any training program that the manufacturer or distributor recommended and that he used the microwave device at all times exactly as instructed by the proctor and by the literature given to him," writes Acacia Brush Perko, Esq.

Man sues over outcomes from microwave device

Several weeks before his birth, it appeared that “J.D.” suffered from antenatal hydronephrosis. His mother was induced to deliver the child at 36 weeks. J.D. had an Apgar score of 9/9 at the time of his birth.

Thereafter, a pediatrician saw the child, examined him, and requested a neonatology consult for the next day. That pediatrician went away for the weekend and turned J.D.’s care over to another pediatrician. A neonatologist examined him the following day, ordered an ultrasound with a notation that the result of the ultrasound should determine the course of action, and noted that a pediatric urologist should be consulted. The day after birth, an ultrasound confirmed that J.D. suffered from bilateral moderate to severe hydronephrosis.

Following this diagnosis, the pediatrician discharged the child 2 days after birth with instructions to see a pediatric urologist, without ordering a voiding cystourethrogram (VCUG) to determine the cause of the hydronephrosis. The day after discharge, J.D. was examined by a urologist who performed an ultrasound and released the child home with instructions to call and schedule the VCUG for the following week. After the visit with the urologist, J.D. developed jaundice that required in-home bilirubin lights.

J.D.’s mother called and scheduled the VCUG as instructed, and the procedure was set just 7 days after birth. On the day of the surgery, the mother brought J.D. to the hospital for the procedure. The VCUG revealed Grade IV reflux. J.D. was immediately hospitalized, suffering from urinary tract infection, sepsis, and 

meningitis. As a result, J.D. suffered mild mental retardation.

Is clinician at fault for vesicovaginal fistula?

J.D.’s mother brought suit against all the involved pediatricians, the neonatologist, and the urologist, alleging that they were negligent in failing to properly treat her son who was diagnosed with antenatal hydronephrosis prior to birth. The plaintiff alleged that the physicians fell below the standard of care by failing to order a VCUG before discharge (pediatricians and neonatologist) or on an emergent basis (urologist), and failing to order any antibiotics to keep J.D.’s urine sterile pending a diagnosis of his condition (all defendants). All defendants denied liability.

The defendant pediatricians contended that J.D.’s condition was consistent with mild jaundice due to prematurity and that they acted within the standard of care by referring the child to a pediatric urologist and neonatologist. The neonatologist contended that he was called to consult solely for the purpose of ordering the ultrasound and that was the extent of his involvement with the infant.

The defendant urologist claimed that there was no deviation from the standard of care. He maintained that he observed J.D.’s urine during examination and had no reason to order the VCUG test on an emergent basis since the child was voiding. The defendant urologist also argued that at the time of the care, there was no standard of care that required the dispensation of prophylactic antibiotics under these circumstances and consequently there was not negligence on his part.

Matter proceeded to trial against urologist only

Prior to trial, the neonatologist settled with the plaintiff for $100,000. The hospital that was sued on a respondent superior theory settled prior to trial for the sum of $50,000. The remaining defendants (the two pediatricians and the urologist) participated unsuccessfully in mediation. They made a joint offer of $1,500,000 at mediation. The plaintiff accepted the $500,000 offers from the two pediatricians and rejected the $500,000 offer from the urologist. The matter proceeded to trial against the urologist only.

Lack of follow-up on x-ray leads to lawsuit

The plaintiff petitioned the court for separate jury trials on the issues of liability and damages. This request was granted by the court. The trial on liability lasted 10 days. After 3 hours’ deliberation, the jury returned a verdict in the plaintiff’s favor, finding that the defendant urologist fell below the standard of care and proximately caused J.D.’s injury. The issue of damages was next to be tried. Prior to the damages trial, the defendant urologist agreed to settle for $3,200,000.

: The facts involving a young mentally retarded child may have resulted in a staggering damage award. Following an adverse liability verdict, this defendant urologist did not also want the jury deciding damages. As you may know from reading these columns, a plaintiff in a medical negligence action must prove both liability and damages. In this case, the trial was bifurcated, meaning the issue of liability was separated from the issue of damages. The jury’s return verdict on liability altered the landscape for the defendant urologist, who may have been more confident in his position prior to trial.

"Following an adverse liability verdict, this defendant urologist did not also want the jury deciding damages," writes Acacia Brush Perko, Esq.

Author | Acacia Brush Perko, Esq.

Articles

Urology malpractice consult: Patient dies following lithotripsy procedure

Urethra nicked during excision procedure

Man sues over outcomes from microwave device

Lack of emergent VCUG leads to costly settlement