 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.

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.

Articles

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.

Lawsuit alleges urethral injury following ED visit

A 65-year-old man presented to his urologist with symptoms of an enlarged prostate. He agreed to allow the urologist to perform a transurethral resection of the prostate (TURP) to remove half of the prostate. The other half of the prostate was to be removed at a later time. Prior to the TURP procedure, the urologist performed an open procedure for the removal of bladder stones. The urologist then performed the TURP procedure. After half of the enlarged prostate had been removed, a lab assessment indicated that decedent’s sodium levels were dropping. Nonetheless, the defendant proceeded to remove the other half of the enlarged prostate.

Approximately 50 minutes later, lab results reportedly showed that decedent had experienced a life-threatening decrease in sodium levels (hyponatremia) and critically elevated levels of ammonia (hyperammonemia). As a result, the patient allegedly suffered brain damage. He lapsed into a coma that lasted until his death 9 months later.

The patient’s wife brought a medical malpractice suit against the urologist, alleging that the urologist negligently performed the TURP procedure. According to the plaintiff, there is a time window of safety within which a TURP procedure can be performed with a high degree of success, both for correction of the underlying medical problem and with very little risk to the patient. However, if the TURP procedure goes longer than the window of safety, the patient is put at undue risk for several complications unique to the TURP procedure as distinct from an open prostatectomy, including dilutional hyponatremia and hyperammonemia.

The plaintiff also pointed out that the urologist determined the patient also had bladder stones and did an open procedure for removal of the stones. The plaintiff contended that extending the open procedure to remove the prostate would have been simple to do, had little to no effect on the healing time for the patient because an open procedure had already commenced, and would have avoided all the risks associated with the TURP procedure.

Still, the urologist elected to proceed with a TURP procedure after open removal of the bladder stones, according to the plaintiff. At the end of the safety window, the urologist performed a lab assessment that confirmed that the patient’s sodium was dropping. Even though the prostate was obviously greatly enlarged and was at the end of the window of safety, the urologist had removed 1 half of the prostate, and had the patient’s consent to terminate the procedure and return at a later time to compete the procedure, the urologist forged on into an allegedly unnecessary dangerous zone.

Approximately 50 to 55 minutes later, the physician drew lab values again that showed that the patient had experienced a significant and life-threatening decrease in sodium levels due to absorption of excess amounts of irrigant used in the unnecessarily prolonged TURP procedure. The patient also experienced critically elevated ammonia levels due to metabolism of the glycine irrigant.

The plaintiff alleged that her husband suffered brain damage in the course of reversal of the hyponatremia. At the time of his death, he incurred medical expenses of approximately $1,000,000. The decedent was survived by his wife, 5 adult children, and 21 grandchildren.

The defendant urologist contended that his care was within all standards of care and denied any negligence. The case proceeded through pretrial discovery, and the parties agreed to participate in private mediation. The case resolved at mediation for $3,500,000.

Mediation offers parties an alternative venue for resolution outside the courtroom. There are some cases that should be tried and others that may be better suited to resolution through private negotiation or mediation. If settlement is reached at mediation, that settlement eliminates parties’ time-consuming and resource-draining participation in pretrial discovery, potential disclosure of personal and proprietary information, commitment of personal time, ongoing legal fees and expenses, unpredictability of verdict and judgment at trial, and unpredictability of appellate review of trial. Alternatively, mediation and settlement offers immediate conclusion and terms of resolution, which are unavailable through court. In this instance, mediation allowed the parties finality and closure.

Lawsuit was resolved at mediation for $3,500,000.

Acacia Brush Perko, Esq.

Articles

Patient alleged doctor removed wrong testicle during surgery

Man sues after delayed diagnosis of prostate cancer

Lawsuit alleges urethral injury following ED visit

TURP allegedly results in brain damage, death