MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail. Click on the envelope icon to email.

Dawn Collins, JD

In 2013, a 54-year-old Pennsylvania man presented to his urologist with pain in his right testicle. An ultrasound showed damage to the testicle, including scarring and atrophy. He had a history of being accidentally kicked in that testicle by his daughter, who has cerebral palsy, 15 years earlier. He suffered from hypogonadism and took testosterone supplements to treat his sexual dysfunctions. He encountered severe pain during intercourse (and subsequent loss of erection) if any contact with the right testicle occurred.

The urologist determined that the man would benefit from a right orchiectomy and removal of the right spermatic cord and vas deferens. The procedure was done a few weeks later, and the next day the patient was informed that the wrong testicle may have been removed.

An ultrasound was later performed and confirmed that the right testicle remained. After this ultrasound, the man did not return to the urologist and was seen by his primary care physician. After the swelling diminished from the operation, the pain and discomfort returned to the right testicle, and the incidences of severe pain during intercourse increased. The man was fearful of undergoing another operation as it would require him to use hormone therapy for the rest of his life.

The patient sued the urologist and the hospital involved with the surgery. At trial, the urology expert testified that the defendant urologist failed to offer the patient alternative treatments before proceeding with the drastic option of removing the testicle. The expert stated that oral medication, spermatic cord injections, and micro surgery were all less invasive options that he should have considered and pursued before orchiectomy. The expert testified that the urologist removed the wrong testicle because he failed to track or palpate the right spermatic cord up into the body, which he admitted he failed to do. The expert concluded that the urologist was reckless when he assumed that he cut the right spermatic cord without confirmation.

Continue to the next page for the verdict.

An operating room nurse testified that she looked at the pathology report that noted the specimen removed was the left testicle. She then checked the consent form, which noted a right orchiectomy. To reconcile the discrepancy, she returned to the operating room to show the report and consent form to the urologist, who then backed away from the operating table and sat down for a time period. He eventually got up and put on new gloves and completed the operation. The nurse testified that this was when the urologist realized he removed the wrong testicle, also citing the postoperative report, which stated, “At this point, it appeared that the left testicle and cord may actually have been removed instead of the right one.”

The urologist admitted that he breached the standard of care for removing the left testicle when the right testicle had been planned to be surgically removed. He did dispute, however, the operating nurse's account of the procedure. He argued 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 removed the testicle that was on the right side of the scrotum and the testicle had a spermatic cord that led to the left side of the body. The defense expert in pathology noted that the testicle that was removed contained fibrous tissue, which may be caused by trauma and may cause pain.

The plaintiff’s expert in urology refuted the explanation that the left spermatic cord crossed with the right and opined that is anatomically impossible, since 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 jury returned a verdict in favor of the patient for $870,000.

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"At trial, the urology expert testified that the defendant urologist failed to offer the patient alternative treatments before proceeding with the drastic option of removing the testicle," writes Dawn Collins, JD.

Wrong testicle removed during surgery

In 2013, a 69-year-old man in Washington underwent an open retropubic prostatectomy to treat his BPH. During the operation, a laceration to the rectum occurred, as well as obstruction of the blood supply to the bladder neck and penile nerve damage, resulting in some urinary stress incontinence. He required three major reconstructive operations, 15 other procedures, more than 60 days in the hospital, and 100 doctor visits as a result of his complications.

The man sued his urologist and the urologist’s practice, alleging medical malpractice and lack of informed consent. He claimed the urologist selected the wrong surgical approach, which led to his negligently lacerating the rectum. The patient contended that a minimally invasive transurethral resection of the prostate (TURP) should have been performed rather than the open procedure, and if it had been he would not have suffered the injuries and complications. He also argued that the urologist failed to identify the rectal injury during surgery and had he recognized it, he would have performed an immediate repair.

The urologist contended that the proper surgical approach was utilized, and the AUA guidelines supported the decision to perform an open prostatectomy instead of a TURP due to the size of the patient’s prostate. He also argued that failure to recognize the rectal laceration intraoperatively was not below the standard and is a known complication for that procedure.

At the conclusion of a 3-week trial, the jury deliberated for 6 hours and found that the urologist and his practice were negligent in the treatment provided to the patient, and that such negligence was a proximate cause of the patient’s injuries and damages. The jury further found that the urologist failed to obtain informed consent for the open simple retropubic prostatectomy, but such failure was not a proximate cause of the patient’s injuries and damages. The jury determined that the patient's damages totaled $8 million.

In this case, it is not reported how the jury came up with $8 million for an award of damages to the patient, but when the patient has a significantly complicated post-injury course, as this patient did, it is difficult for jurors to see that such complications can occur without negligence by someone. The case subsequently resolved pursuant to a confidential agreement, most likely to avoid an appeal and allowing the patient to recover something in the end.

Failure to diagnose and treat occluded abdominal aorta blamed for death

An 81-year-old Arizona man presented to a urologist for evaluation of a mass on his kidney. After several office visits and further evaluation, the urologist recommended and preformed laparoscopic nephrectomy. He noted severe atherosclerosis in the patient’s abdominal aorta and renal artery.

The patient was seen by a critical-care specialist and several nurses over the next several hours, but then suddenly lost movement and sensation in his legs. The anesthesiologist believed it was due to the still-running epidural anesthesia. The paralysis continued throughout the night despite termination of epidural anesthesia.

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In the next morning, it was determined through further testing that the patient likely had an occluded abdominal aorta secondary to his severe atherosclerosis. He was transferred to another hospital and underwent surgery but died a few days later. An autopsy revealed that he had severe atherosclerosis throughout his abdominal aorta, with evidence of clot formation that predated the nephrectomy, with no evidence of any intraoperative injury.

Nevertheless, a lawsuit was filed against the urologist on behalf of the patient’s estate alleging the urologist fell below the standard of care when he failed to obtain the patient’s informed consent and that he failed to provide appropriate postoperative care by failing to diagnose the occluded abdominal aorta earlier. The urologist denied the allegations and at the conclusion of a 5-day trial, the jury returned a defense verdict.

The plaintiff claimed that the urologist should have performed TURP.

BPH patient injured during prostatectomy

In 2011, a 50-year-old New York man began self-administration of injections that were intended to promote penile erections. The medication contained papaverine, phentolamine, and prostaglandin, and had been prescribed by a urologist.  

The prescription was refilled 6 months later, and 2 months after that the man was examined by one of his urologist’s associates. The associate noted the patient’s penis had developed fibrosis. Later that month, the patient was seen by his original urologist, and complained that some injections had not produced the desired effect. The urologist prescribed a different medication, and in examining the fibrosis, he opined that it was due to the patient’s diabetes.

During the next 6 months, the urologist examined the man three times. During each examination, the man claimed that a disfiguring penile lump had developed and the medication was not consistently producing the desired effect. During the last examination, the urologist ordered a suspension of the injections. The patient had used injections for a total of 14 months, claimed they scarred and disfigured his penis and halved the size, and complained that he could no longer achieve an erection.

Complications after sling repair lead to lawsuit

The man sued the urologist and claimed that the urologist failed to properly manage his treatment, which constituted malpractice, and that he had failed to obtain informed consent for the treatment.

The patient’s expert urologist opined that the defendant urologist fell below the accepted standards by not adequately monitoring the effect of the injections, the injections should have been discontinued when fibrosis developed, and the patient’s scars were not addressed in a timely fashion. The expert also claimed there was a failure to obtain informed consent because the urologist did not warn the patient that injections could cause scars, and did not offer alternative methods of treatment; namely, oral medications that should have been prescribed before a regimen of injections.

The urologist argued that he did obtain informed consent to the injection treatment, noting that the patient had signed a document that explained that scars were a possible outcome. The defense contended that a reasonable, properly informed person would have undertaken the injection regimen. Finally, the defense claimed the patient’s scars were not a result of the injections but were a product of him failing to properly manage his diabetes. The jury returned a verdict for the patient and awarded $2 million.

A lack of informed consent claim is added to a medical malpractice case when the patient can show that if he had known of the risks of a procedure/treatment-and it is a risk a reasonable informed person would need to know to make a decision-he would not have consented to that procedure. While it is not necessary to discuss every possible risk ever known for a procedure or treatment, it is prudent to document in the record that common risks and benefits for the procedure were discussed with the patient, alternative treatment options were provided, and the patient consented or declined the specific procedure.

Delay in diagnosis of prostate cancer alleged

A 62-year-old Florida man was referred to a urologist by his primary care physician after noting an elevated PSA. The urologist noted the elevated PSA, but no biopsy was scheduled.

The patient returned 4 months later, and his PSA was the same. No biopsy was scheduled. Nine months later, the primary care doctor noted the PSA was further elevated. A biopsy was then done and confirmed aggressive prostate cancer, which had metastasized and was incurable. A year later, while undergoing treatment for the cancer, the man committed suicide, leaving a note that the treatments were grueling.

In the malpractice case that was filed on behalf of the man’s estate, it was alleged the urologist should have performed a biopsy at the first appointment and it was negligent to not perform one with the elevated PSA. Had the cancer been discovered earlier, treatment would not have been so aggressive and grueling because the cancer would not have progressed so far.

The urologist argued that he did recommend a biopsy at both appointments with the patient, but he declined, stating that he had a biopsy before and it was too painful. The urologist also maintained the patient had metastatic cancer when he first met with him. The jury rendered a defense verdict after deliberating 10 minutes at the conclusion of a 5-day trial.

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The urologist argued that he did obtain informed consent to the injection treatment, noting that the patient had signed a document that explained that scars were a possible outcome.

Penile injections lead to disfiguration

Dawn Collins, JDA New York woman in her mid-40s suffered from stress urinary incontinence. She underwent a bladder sling repair and hysterectomy performed by a urogynecologist. She subsequently sued the physician, claiming the repair was negligently performed and the hysterectomy was unnecessary. She alleged that the tape used during the bladder repair was a mesh-type material and it migrated and protruded through the vaginal wall, causing permanent injury. She claimed this would cause her to suffer extensive permanent pain and require regular, very embarrassing physical therapy.

The physician argued that the migration of the mesh is a known risk of this procedure and the patient had given informed consent for the operation. The jury awarded the woman $500,000 for past pain and suffering, $350,000 for past lost income, and $3 million for future pain and suffering over 30 years, for a total award of $3.85 million.

Lack of informed consent for use of mesh sling alleged

A 64-year-old California woman underwent an operation to repair urethral hypermobility, during which a mid-urethral mesh sling was placed. 

Following the operation, the patient began complaining of vaginal pain, frequent urinary tract infections, dyspareunia, pelvic and hip pain, and a return of urinary incontinence.

Severe pain after male sling implantation results in lawsuit

The woman sued the urologist and asserted that there was a lack of informed consent by the physician. She contended the surgeon failed to disclose his personal financial relationship with the mesh manufacturer.

The urologist argued that several treatments options were given to the patient and that she ultimately chose the surgical mesh implant. A defense verdict was returned.

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The physician argued that the migration of the mesh is a known risk of the procedure and the patient had given informed consent for the operation.