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, JDA 71-year-old Illinois man underwent a laparoscopic nephrectomy at a hospital in 2008. The operation was performed by a urologist assisted by another urologist.
During the dissection of the patient’s ureter, an arterial bleed occurred and was repaired. Because of the arterial injury, the patient required a significantly longer hospital stay. He underwent subsequent femoral bypass surgery, and suffered permanent damage to vasculature in the left leg.
The man sued the urologist and alleged he deviated from the standard of care by performing an extended dissection of the ureter, thereby increasing the risk of intraoperative injury. The patient further alleged lack of informed consent.
The urologist contended that dissecting down the ureter during the nephrectomy did not violate the standard of care, and that the patient was fully informed about the risk of intraoperative injury to surrounding structures when consenting to have his kidney removed. The jury returned a defense verdict.
LEGAL PERSPECTIVE: In malpractice cases that involve injury from a known complication of a procedure, an additional claim of lack of informed consent is often made and the patient contends that if he/she had known of the possibility of the complication, he/she would not have consented to the operation. This is usually overcome by presenting a signed consent form and can be further supported by a note in the medical record regarding the risk-benefit discussion had with the patient.
In the case above, the patient went further and claimed a medical battery was committed by the urologist, meaning treatment or touching of the patient without his consent, but the patient was unsuccessful in proving this to the jury.
Sepsis from kidney stone leads to amputations
A 35-year-old woman presented to a New Jersey hospital in 2011, where she was diagnosed with renal colic and a kidney stone. The patient’s condition worsened and positive bacterial growth was reported the next day. The physician’s attempt to drain her kidney that evening was unsuccessful, and a successful attempt was completed about 6 hours later.
The patient developed sepsis and was in a coma for 5 days. She lost peripheral circulation, which resulted in amputation of both legs below the knees and her left hand at the wrist. The woman sued those involved with her care and the parties came to a settlement agreement of $16.5 million.
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Delay in diagnosing prostate cancer
A 65-year-old Massachusetts man presented to his physician in 2007 for a routine physical examination. He underwent the examination and blood work, which did not include a PSA test or a genitourinary exam.
Seven months later, the man returned and a nurse practitioner performed a prostate examination, which revealed an enlarged prostate. She ordered PSA tests, which were within normal limits. The man saw the physician several times over the next few years, and the physician routinely completed physical examination checklists but never performed a prostate exam.
In 2008, the patient’s PSA had doubled, and in 2009 the nurse practitioner found an enlarged prostate but without masses or nodules. In 2010, the physician examined the prostate and ordered new PSA tests; the level was 10.0 ng/mL.
A month later, the man’s PSA was 30.2 ng/mL, and 31.8 ng/mL the next month. The physician referred the man to a urologist, who performed a biopsy that revealed adenocarcinoma in eight out of the 12 samples. The patient sought a second opinion and had a prostatectomy with pelvic lymph node dissection in 2011. Pathology reported Stage IV adenocarcinoma of the prostate.
The man sued the first physician for delay in diagnosing the cancer. He alleged a failure to meet the standard of care, failure to obtain more timely repeat PSA levels, and failure to refer the patient to a urologist when the levels were increasing rapidly.
The parties underwent mediation discussions and ultimately settled for $675,000.
Delay in diagnosis of bladder cancer
A Louisiana man was treated by his urologist for many years for erectile dysfunction. In 1999, a tumor was detected on the patient’s bladder. The patient chose a noninvasive bacillus Calmette–Guérin treatment plan.
About 8 months later, the patient complained of back pain. A biopsy was done and revealed bladder cancer that had metastasized. He died about 18 months later.
A lawsuit was filed on behalf of the man’s estate and alleged error by the urologist in failing to make a timely diagnosis, and claimed that had he biopsied the tumor earlier, the patient would likely have survived and would not have had metastatic cancer. The issue was presented to a medical review panel, and the panel concluded that the physician’s care was timely and the patient chose to proceed with less aggressive treatment. A defense verdict was entered.
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