One of the most damaging scenarios to the defense in medical malpractice cases is that of dueling defendants.
Ms. CollinsA 49-year-old Illinois man went to the emergency room in 2011 with what he believed was pain from a kidney stone. A computed tomography scan showed a large mass on the left kidney that was thought to be cancer.
A few weeks later, the patient underwent laparoscopic surgery to remove the left kidney. The urologist performing the operation was assisted by his partner, another urologist. The assistant held the camera so that the surgeon could see the relevant anatomy. Several hours into the operation, the assistant left the room to perform a vasectomy on a patient in his office on the hospital campus. During this time, a technician operated the camera.
After the assistant left the operating room, the surgeon encountered bleeding. He used a GIA stapler-with both stapling and cutting components-which was left in place to identify the source of the bleeding, and the surgeon asked the nurses to find another surgeon to help him. A general surgeon came from an adjacent operating room to assist. The stapling device was then removed from the cavity, and the first assistant surgeon returned to the operating room before the kidney was removed.
After surgery, the patient complained of pain in his legs and lacked a pulse and feeling in his legs. An arteriogram showed a dark mass within the aorta. He was then transferred to another hospital for exploratory surgery. A vascular surgeon discovered that the aorta had been cut in half and stapled to both sides. This cut off the blood flow to the spinal cord and legs.
This surgeon also found that the right renal arteries had been stapled and cut by a GIA stapler, which caused functional damage to the healthy right kidney. The patient is now paraplegic and uses a wheelchair. He also requires kidney dialysis treatment three times per week.
In the lawsuit that followed this incident, the patient claimed negligence by the hospital and all surgeons involved in the operation, alleging that their failure to inspect the anatomy and ensure proper function and blood flow prior to closing the surgical site caused his debilitating injuries.
The main surgeon denied causing the stapling injuries and claimed that the general surgeon who came in to help was the only other person who used the stapler during the operation. The assistant surgeon maintained that he was not in the operating room when the stapling device was used. The general surgeon was dismissed from the case, and a $30 million settlement was then reached.
LEGAL PERSPECTIVE: One of the most damaging scenarios to the defense in medical malpractice cases is that of dueling defendants. The strategy in which each defendant is trying to get himself off the hook by blaming the other is rarely successful, and most often, these cases will settle. Once a jury sees the defendants pointing the finger at each other, they assume something must have been below the standard of care or they would not be blaming each other. Even if there is no care below the standard in a particular case, the defense attorney will usually not want the dueling defendants in front of the jury and chance a large award because of the finger pointing.
A 56-year-old Virginia man had suffered from diabetes for many years and had limited kidney function as a result. An intravenous pyelogram was ordered by his urologist and performed by a radiologist using contrast dye to assess kidney function. Shortly thereafter, he was placed on dialysis.
The patient sued the radiologist after the IVP, claiming it caused even more diminished function in his kidneys, necessitating the dialysis until he received a kidney transplant in 2008. He claimed that the IVP test was not necessary or should have been done without contrast dye, and that a less invasive test could have been done to assess kidney function; a creatinine level would have sufficed.
The radiologist argued the IVP was an appropriate test, that the non-ionic contrast medium was used, and this medium was not the cause of any further loss of kidney function. The matter was first tried in 2007, and a defense verdict was returned. A new trial was granted, and this second trial also resulted in a defense verdict.
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