In cases involving a claim that a patient had an unnecessary operation where cancer was suspected but not found, the issues usually are a lack of informed consent and failure to further investigate the condition to get a definitive diagnosis.
Dawn Collins, JDA 57-year-old Missouri woman underwent imaging of her kidney, which showed a defect. The radiologist and pathologist suspected cancer and the urologist performed a nephrectomy. No cancer was found.
The patient sued the urologist and his group, claiming the surgery was unnecessary and that further testing should have been done before deciding on the operation. She claimed it took a year to recover fully from the surgery and that while she has normal kidney function in her other kidney now, she is still at increased risk for ultimately needing dialysis or a transplant and requires yearly blood testing. The jury found for the woman and awarded her $240,000.
Claim of unnecessary surgery
A 59-year-old woman who had not been to a gynecologist for 10 years was referred by her family physician for a gynecologic examination for a suspected pelvic abnormality in 2011. She was seen by the gynecologist, who performed an ultrasound and found a 10-cm pelvic mass. There was a significant risk of cancer, and the patient consented to surgery to remove the mass.
During the operation, the physician realized that what had appeared to be a mass was actually a diseased and inflamed bladder. Nothing further was done in the operation.
The woman sued the gynecologist and claimed that the operation was unnecessary. She alleged the physician failed to do further testing and that two ultrasound probes should have been used instead of one. During the case, the woman’s husband claimed that the gynecologist left the operating room and asked him for consent to remove the bladder, but he told her no.
The physician argued that she would never have considered removing the bladder herself because she was not a urologist. She claimed the surgery was necessary as there appeared to be a large mass on ultrasound and though it was an unusual presentation of a diseased bladder, exploratory surgery was still necessary. A defense verdict was returned.
LEGAL PERSPECTIVE: In cases involving a claim that a patient had an unnecessary operation where cancer was suspected but not found, the issues usually are a lack of informed consent and failure to further investigate the condition to get a definitive diagnosis. The patient must show it was below the standard of care to not perform a different test, more imaging, a biopsy, referral to a specialist etc., which would have led to a negative finding for cancer and thus no surgery.
In the first case, the patient claimed that further investigation was required to determine whether cancer was present prior to performing the operation, including a biopsy. In response, during the physician’s deposition he countered that a biopsy could have knocked the cancer off the kidney and exposed the cancer cells to other organs. The plaintiffs were successful in having that statement excluded from the jury at trial. The physician was able to exclude evidence about other malpractice cases against him.
The second case was successfully defended and the jury must have believed that performing surgery was within the standard at that point, and the patient did not lose an organ in the process.
A 52-year-old Michigan man underwent a computed tomography scan in 2010 for suspicion of cystic renal cell carcinoma. The scan was read by a radiologist as positive for cancer and the patient underwent a nephrectomy. The postoperative pathology report determined the kidney was cancer free.
The man sued the radiologist and her group, claiming that she failed to properly interpret the CT scan, resulting in the unnecessary nephrectomy.
The radiologist argued the CT scan was properly read, that cystic renal cell carcinoma is rare, and that CT scans can be misleading as much as 50% of the time. Also, she claimed that the patient had recovered and was able to resume normal activities with just one kidney. A defense verdict was returned.
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