 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 74-year-old man presented to a urologist for a nonsurgical insertion of a Foley catheter on November 28, 2017. He was sent back to his nursing care facility, where he was living before the procedure. One week later, on December 4, 2017, the patient was septic and was taken to the hospital by ambulance. He was admitted and received a computed tomography (CT) scan. About an hour later, he underwent an exploratory laparotomy. The surgeon performing the procedure found a 10-cm hole in the bladder during the surgery. He also noted urine in the abdominal cavity. As a result of this procedure, the surgeon made a diagnosis of peritonitis and performed resection surgery on the small bowel and colon. The patient received a colostomy bag and was sent back to his nursing care facility shortly thereafter. The surgeon suggested to the patient that the perforation likely occurred when the urologist inserted the catheter on November 28.

The patient was hospitalized again because of a colostomy malfunction. He was treated and released. He returned to his nursing care facility and ultimately was released to go home and stay with his wife. During this time, the patient’s wife was primarily taking care of him, cleaning out his colostomy bag and aiding in household tasks.

The patient filed suit against the urologist and nursing home, alleging negligence and seeking recovery of past medical expenses and damages for the plaintiff’s past pain and suffering. All defendants denied negligence and further denied that any claimed negligence proximately caused any injury to the plaintiff. Following initial discovery, the plaintiff dismissed the nursing home from the case. The claims against the urologist proceeded.

As against the urologist, the plaintiff claimed the urologist perforated the patient’s bladder, which led to sepsis and hospitalization. As alleged, the plaintiff claimed that the urologist was negligent in inserting the catheter, which caused the bladder perforation, which required additional surgery, hospitalization, and the colostomy bag.

The plaintiff died of unrelated causes before trial, on October 20, 2020, and his estate was substituted in as the proper party. The case proceeded to trial.

At trial, the plaintiff’s expert urologist testified that the defendant urologist negligently inserted the catheter guide during the catheterization procedure, and that this negligence caused the bladder perforation. In response, the defendant urologist denied perforating the bladder and denied causing the sepsis infection. The defendant’s expert testified that the urologist met the standard of care and pulled back the catheter guide before it could hit or perforate the wall of the bladder. The defendant’s expert also noted that, after the plaintiff went to the hospital following his sepsis infection and treatment, he underwent a CT scan that indicated no signs of perforation. The expert further indicated that if the catheterization on November 28 had caused the bladder perforation, urine would have immediately leaked into the abdominal cavity, and there were no signs that that occurred. The expert then gave his opinion that the sepsis would have resulted much sooner, near December 1, if the urologist had in fact been negligent. Defense counsel utilized the records from the nursing care facility that indicated that the plaintiff had not shown signs of sepsis until December 4, so the perforation had to have taken place after the catheterization. Defense counsel further noted the laparoscopy showed weakened and dead bladder tissue, which could have been spontaneously perforated. In the alternative, the defense argued that the surgeon who performed the laparoscopy somehow punctured the plaintiff’s bladder during the procedure.

After 4 days of trial, the jury deliberated for 45 hours and returned a defense verdict and finding of no negligence.

: Often, the underlying facts of the suit and the facts of the plaintiff’s preexisting conditions and medical history are relevant to medical malpractice suits. Regardless, perhaps even more important are the expert witnesses. An expert witness specializing in the same medical practice area is crucial to determine whether the alleged conduct of a physician deviated from the requisite standard of care. Here, the defense counsel’s expert witness pointed out key facts that determined that, if the urologist had indeed been negligent in inserting the catheter, the signs of sepsis would have occurred 

 than they did in the plaintiff in this case. As a result, the jury found that the urologist could not have perforated the plaintiff’s bladder.

Articles

Plaintiff alleges injury occurred during insertion of Foley catheter.

Perforated bladder results in sepsis and subsequent lawsuit

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.

"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.

Acacia Brush Perko, Esq.

Articles

Perforated bladder results in sepsis and subsequent lawsuit

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?