Acacia Brush Perko, Esq.

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.

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

Urologist claims patient negligence in defense of malpractice lawsuit

A 57-year-old unemployed man with benign prostate hyperplasia (BPH) presented to his primary care physician. The patient reported that he had found a coin-sized bloody stain on his underwear after having engaged in sexual activity. The primary care physician ordered a blood test, and the test’s results revealed that the blood did not contain an abnormally high concentration of prostate-specific antigen (PSA).

A year later, the patient returned to his primary care physician and reported he had found another bloody stain on his underwear. His primary care physician ordered a urinalysis and performed a digital rectal exam of the patient’s prostate. The primary care physician reported that the test results did not reveal any abnormalities and concluded that the patient’s bloody discharges were merely the result of hematospermia.

Four months later, the patient returned. He reported that he had detected a lump in 1 of his axillae, and he also reported that he had not been able to maintain an erection. Tests did not reveal any abnormalities, so the primary care physician prescribed sildenafil citrate (Viagra).

Over the next 4 months, the primary care physician performed 2 additional exams. During each exam, the patient reported he suffered burning penile pain that occurred during or after intercourse. A test revealed that the patient’s blood contained a slightly abnormal concentration of PSA, so the primary care physician performed a digital rectal exam of the patient’s prostate. The primary care physician reported that he did not detect any nodules of the prostate, and the patient received a diagnosis of prostatitis. This time, the physician prescribed antibiotics.

Two and a half years after his initial visit, the patient returned to his primary care physician and reported he experienced a discharge of purulent seminal fluid. A test revealed that his blood’s PSA concentration had increased to 5.3 ng/mL. The primary care physician referred the patient to a urologist. The urologist confirmed that the patient was suffering metastatic cancer of his prostate. The cancer had progressed to a level such that it could not be eradicated, and the patient died.

The patient’s family brought a medical malpractice suit against the primary care physician, alleging that the disease could have been detected at least 1 year earlier and that prompt referral to a urologist and treatment would have saved his life.

Plaintiff: First symptoms should have prompted referral

At trial, the plaintiff’s attorney argued that the prostate cancer’s symptoms mimicked those of an enlarged prostate and that the patient’s first reported symptoms should have prompted a referral to a urologist, who could have performed the necessary tests that would have revealed cancer. The plaintiff’s expert urologist opined that prostate cancer is not easily detected, which is why the referral and involvement of urology was necessary.

The primary care physician’s defense counsel contended that the patient’s signs and symptoms were products of BPH, hematospermia, and prostatitis. The defense expert opined that these conditions are not certain indicators of cancer and that the treatment properly addressed those conditions. The primary care physician maintained he met the standards of medical care.

The patient died at age 62. He was survived by his wife, several adult children, and grandchildren.

After 3 days of trial, the jury deliberated for 1½ days, then returned a verdict for the plaintiff. In their responses to jury interrogatories, the jury found that the primary care physician breached the standard of care by failing to issue a timely referral to a urologist, and that this failure caused an incurable spread of cancer. The jury awarded the plaintiff $2.2 million.

A number of state legislatures have passed tort reform and limited damage awards in medical malpractice cases in response to rising health care costs and what some see as frivolous medical malpractice claims. The actual cap varies widely state to state, and it also varies as to what types of claims are subject to caps. For example, because this case was a wrongful-death claim, the state caps did not apply.

 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.

Prostate cancer symptoms were mistaken for other conditions.

Delayed referral to urologist led to death; jury awards $2.2 million

A 26-year-old married mother of 2 young children had a history of methicillin-resistant staph aureus (MRSA) infections that manifested as skin outbreaks of carbuncles and furuncles. She developed a lesion in the middle of her back. As it was scabbing over, she developed unbearable back pain with fever.

She presented to the emergency department and was then admitted to the hospital under the care of an internist on a Friday morning. She had an elevated white blood cell count, clearly indicating infection. Her urinalysis revealed no bacteria, strongly indicating that she did not have a urinary tract infection. Despite this, the internist asked for a urology consult.

Urologist diagnoses patient with kidney infection

The urologist saw the plaintiff that Friday afternoon and made a diagnosis of kidney infection, even though the urinalysis showed no signs of bacteria. The urologist also asked for an infectious disease consultation because of the history of methicillin-resistant 

The hospital nurses told the infectious disease doctor of the consult request at 3:45 p.m. Friday and 3 more times over the weekend. The doctor was in the hospital Saturday and Sunday but did not see the patient.

The admitting internist and consulting urologist knew the infectious disease consultation was “necessary, reasonable, and prudent,” and that it did not come on Saturday or Sunday. Neither the internist nor the urologist did anything effective to get the infectious disease consult. They did not attempt a transfer.

The plaintiff had a continuous high fever with intractable back pain from the date of her admission on the Friday.

On Sunday, the hospital nurses noted weakness in the lower extremities and inability to empty her bladder, both of which were reported to the urologist on Sunday. The urologist performed an informal neurological examination but noted no weakness, and he did not request a neurology consult.

On Sunday evening, the plaintiff lost feeling in her legs and could not walk. The internist was notified at home, and he stated he would get a neurology consult in the morning. The infectious disease consult did not come until Monday morning, when the infectious disease doctor quickly diagnosed an epidural abscess from the MRSA lesion on the plaintiff’s back and ordered a stat MRI and decompression.

The plaintiff was left permanently paralyzed from the waist down with permanent loss of bowel and bladder control.

The plaintiff then filed a malpractice lawsuit claiming medical negligence against the admitting internist, urologist, the infectious disease doctor, and the hospital. It alleged improper management and treatment and delayed diagnosis of an epidural abscess that resulted in paralysis from the waist down and loss of bowel and bladder control.

Her allegations against the admitting internist and consulting urologist included failure to diagnose epidural abscess, improper diagnosis of kidney infection, and failure to transfer when the infectious disease consultation was not performed timely. Allegations of negligence against the infectious disease doctor included failure to respond timely to request for infectious disease consultation. Allegations against the hospital included failure to properly obtain infectious disease consultation or request transfer.

During pretrial discovery, the plaintiff claimed $200,925 in past medicals and presented a life care plan with a payout of $11,946,320 over 52 years.

After the deposition of all parties, 3 of 4 defendants wanted to voluntarily pay the applicable medical malpractice cap of $1.7 million. The urologist refused to participate in any settlement. The plaintiff and the other 3 defendants reached a settlement, in which the 3 settling defendants would immediately pay $850,000 and the plaintiff would go to trial against the urologist who refused to settle. If the plaintiff lost or recovered less than the cap of $1.7 million, the settling defendants guaranteed an additional $850,000. If the plaintiff won against the defendant urologist, the plaintiff would recover $850,000 from him.

When the urologist learned of the settlement, he quickly mobilized to be included in the original settlement. The admitting internist and infectious disease doctor, who had the same insurance carrier, paid $906,666. The urologist, who was covered by a separate insurance carrier, contributed $340,000 to the settlement. The hospital, which was self-insured, paid $453,333.

 In cases with multiple defendants, there are any number of reasons why a plaintiff might be willing to accept less in settlement from 1 defendant but not another. Sometimes a plaintiff might be willing to accept less from 1 defendant in the hope or expectation that the plaintiff can recover substantially more money from a remaining tortfeasor.

Here, the total available recovery under the applicable malpractice cap was $1.7 million. To get to that number, the settling defendants and plaintiff put the risk of trial on the urologist, who did not want to participate in the settlement. If the urologist paid before trial with the other defendants, his loss was $425,000, but his exposure at trial would be $850,000. The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap.

"The collaboration between the settling defendants and plaintiff mobilized the urologist, who ultimately participated in the overall settlement of the applicable malpractice cap," writes Acacia Brush Perko, Esq.

Urology malpractice consult: lawsuit claims delayed consult led to paralysis

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.

Stone embedded in bladder wall, causing slow bleed

Acacia Brush Perko, Esq.

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