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.
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.
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.
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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.
LEGAL PERSPECTIVE: 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.