Post Surgery Malpractice, Urology Malpractice, Orthopedics Malpractice, Radiology Malpractice
Cases compiled from www.verdictslaska.com; Editorials by Rose Clifford, editor
© The Medical-Legal News, 2007
• $7.3 million plaintiff’s verdict. A 57-year-old man underwent an elective Nissen fundoplication surgery for his gastroesophageal reflux. The surgery was performed by Dr. Printen. The surgery was successful. About nine days later the man was found unconscious on the toilet in his hospital room after fainting. He had decreased blood pressure, an increased heart rate, decreased oxygen and shortness of breath. The chief resident, Dr. Kadri, and an intern, Dr. Castenada, ordered a work-up for a differential diagnosis of pulmonary embolism, myocardial infarction or seizure. Results of the lab tests came back with a low hemoglobin level, and positive for blood in the stool. The plaintiffs claim that this should have led to a diagnosis of a gastrointestinal bleed. Dr. Kadri claimed that Dr. Printen was called with the test results, but Dr. Printen claimed that he was not told of the hemoglobin or positive hemoccult. Dr. Printen claimed he would have ordered an immediate blood transfusion were he to have been told, and would have ordered a GI consult STAT and transferred the patient to the intensive care unit. A repeat CBC and type and cross match were ordered. The man had a large liquid bloody stool in his bed a couple of hours later. The nurse informed Dr. Castenada, who took the patient for a planned VQ scan to rule out pulmonary embolism. The man had another grossly bloody stool an hour later and was transferred to the ICU by Dr. Kadri. The man suffered an arrest an hour later at which time a blood transfusion was given. The man soon died. The plaintiffs claimed that once the lab results were reported the decedent should have immediately been given blood, placed in the ICU and had a gastroenterology consult on a STAT basis. The defendants argued that a transfusion was not required until the rectal bleed was noted, which Dr. Kadri was not made aware of. The defendants also claimed that the death was due to massive bleeding and that a blood transfusion would not have made a difference. (Horwitz v. St. Francis Hospital of Evanston, Ill., Dr. Kadri, Judith Ortega, RN, Evelyn Johnson, RN, et al.). Plaintiff experts: Brian Kaufman, MD, John Cello, MD. Defense expert: Jon Jansen, MD.
RC: This could be a very complicated case to pursue due to the fact pattern. It would be beneficial to illustrate the sequence of events in a flowchart, to keep the issues simple. This should develop a case theme.
• $1.2 million settlement. An extremely obese 39-year-old man went to a medical facility for bariatric surgery. The man developed post-operative complications. He complained for three days and was transferred to a nearby hospital, where the defendant surgeons continued to monitor him. On the fourth day an X-ray revealed an anastomotic leak. Corrective surgery was performed to repair the leak, but the man already had become septic and experienced multiple organ failure. He died about a month later still in the hospital. The man’s estate brought suit claiming that the facility was negligent by not providing experienced bariatric surgeons, and by not having adequate staffing and equipment for the morbidly obese. The estate also claimed that the surgeons did not timely diagnose or treat the leak. The defendants acknowledged that a post-operative leak in bariatric surgery could be deadly and requires prompt repair, and argued that the leak was treated promptly once detected — that the leak had presented eight hours prior to its discovery. (John Doe v. Anonymous, Unknown venue, Ohio). Plaintiff experts: Eric DeMaria, MD, William Thompson, MD. Defense experts: Michael Schweizter, MD, Elliott Fegelman, MD, Peter Benotti, MD, George Gianakopoulos, MD, Lane Donnelly, MD, Louis Flancbaum, MD.
RC: A key area to focus on is identification of all signs and symptoms of the presence of the post-operative complication and when the complication was discovered.
$7.5 million verdict followed by a $1 million settlement. A 12-year-old boy was brought into an emergency room for treatment of a lacerated arm with damaged tendons. He had a history of asthma and allergies to “cillins.” He also was allergic to Ceclor, which is a cephalosporin. The ER doctor, however, gave the boy Ancef by IV. Ancef is a cephalosporin. Defendant doctor Lontrick examined the boy and deemed that surgery was necessary. Surgery was soon performed and another defendant, Dr. Gordon, was the anesthesiologist. The surgery was delayed for a few hours because the child had eaten dinner just an hour before his arrival to the ER. This delay was done to reduce the risk of aspiration once the child was under anesthesia. Gordon used a Bier Block anesthetic given by IV. As the surgery began the boy was noted to have high blood pressure, a high heart rate and decreased oxygen levels. Gordon switched to a general anesthesia and used a laryngeal mask airway (LMA). The child’s vital signs became normal and surgery was successfully completed. Within minutes after removal of the n95 mask the child when into respiratory and cardiac arrest and could not be resuscitated. A coroner believed the cause of death to be either broncospasm or a reaction to medications. The plaintiffs claimed that the Ancef was contraindicated and should not have been used, and claimed that the surgery was not an emergency and could have been delayed. The plaintiffs argued that Gordon’s intubation during the failed resuscitation was done improperly. The defense argued that an allergic reaction to medicines would have happened almost immediately and that the intubation was done in an acceptable way. Neither of the defendant doctors billed for his services and each one filed a Good Samaritan affirmative defense. Kontrick withdrew the Good Samaritan defense during trial, agreeing that the surgery was not an emergency. Gordon maintained that Kontrick had convinced him that it was an emergency. The jury returned a $7.5 million verdict, and afterward Lontrick settled for $1 million, which was the policy limit. (Muno v. Gordon and Kontrick, Lake County, Ill.). Defense expert: Wayne Polek, MD.
RC: The doctors considered the past medical history of the allergies, yet made a medical decision to do the surgery and give the Ancef. However, the defense is right —an allergic reaction would appear immediately after the Ancef and not hours later. It would seem that the LMA is the most likely cause of the broncospasm.
• Confidential settlement with orthopedic surgeon, defense verdict for radiologist. A 16-year-old was seen by his family doctor, Dr. Raitz. The child complained of back pain, and the doctor ordered an X-ray of the spine which revealed spondylosis. The teenager was seen again a month later by the same doctor with complaints of back pain. A lumbar MRI was ordered. When the teenager presented to the imaging center, the youth reported pain in the lower back, tingling, and a diagnosis of radiculopathy. The MRI was interpreted by defendant, Dr. Maklad. Dr. Maklad had made right/left errors in his description of all his findings. Dr. Maklad correctly noted a disk protrusion at L5-S1, but did not appreciate any strange mass, which the plaintiff claimed was apparent on five of the 36 images. The teenager was then referred to an orthopedic surgeon about a week after the MRI. The doctor, Dr. Boyer, noted left hip pain down to the knee. A month later Dr. Boyer saw the teenager and the teenager had complaints of pain much worse than it was, had inability to sleep and a lump in the left buttock. Dr. Boyer reviewed the MRIs and found no abnormal mass. The next day Dr. Boyer performed a left-sided L5-S1 microdisectomy. In a follow-up visit, Dr. Boyer noted that the teenager complained of severe pain just as bad as before the surgery and a lump on the left hip. About two months later, Dr. Boyer noted continued pain in the left buttocks. The teenager returned to the first doctor, Dr. Raitz, who recorded muscle cramps in the left buttocks that he believed to be temporary. Two weeks later, Dr. Boyer ordered another MRI of the spine that found an impression of status post-left hemilaminotomy at L5-S1. The radiologist, Dr. Rizzo, did not note any abnormal mass. The next day an MRI of the pelvis was ordered, which was read by Dr. Stratos and showed a mass in the left buttocks which was diagnosed as osteosarcoma, a cancer. The teenager died a few months later. The plaintiffs claimed that the initial MRI revealed asymmetry in the lower portions of the spine resulting from a mass that should have been diagnosed as possible cancer. The defendants argued that the negligence fell to Dr. Raitz, who was not sued, and to Dr. Boyer for failing to order the correct MRI, which should have been a pelvic MRI. The defendant, Dr. Maklad, argued that if a pelvic MRI had been ordered, the cancer would have been found. A defense verdict was returned for Dr. Maklad, the sole defendant. Dr. Boyer settled for an undisclosed amount before the trial. (Anonymous teenager v. Dr. Maklad, Unknown venue, Florida).
RC: A comparison chart of who (which doctor), what (what procedure) and when would be helpful. Patient complaints should be included as well as physician responses, the diagnoses, treatments and recommendations, dates of service, radiology findings and dates of dictation.
Defense verdict. A 54-year-old woman underwent carpal tunnel surgery. The woman believed that the surgeon partially severed the left median nerve, which caused paresthesia in her hand. A second surgery was done by a different surgeon to fix the nerve, but it was only partially successful. The plaintiff claimed that the first surgeon was negligent for severing the median nerve during surgery and for failing to recognize and repair the injury at the time of the surgery. The plaintiff complained of lingering numbness and tingling in the hand because of the botched surgery. The defendant admitted that he could have nicked the nerve, and said that he had recommended exploratory surgery to the patient. The woman agreed to do this at first, but then failed to return to the defendant. The defendant surgeon maintained in this case that nerve damage was an accepted risk of this surgery. The defendant also disagreed with the extent of the plaintiff’s damages and argued that she was 1) not as disabled as she had claimed, and 2), that her disability was related to other injuries. A defense verdict was returned. (Calhoun v. Holley, Kalamazoo Co., Mich.). Plaintiff experts: Morton Kasdan, MD, Mark D. Dehaan, MD. Defendant experts: John F. Hollenbach, MD, Edward D. Lannigan, MD.
RC: Most doctors do not readily admit nicking a nerve unless forced to do so during litigation, and most patients lose confidence in their doctors when the doctors are not forthcoming about their iatrogenic (preventable) injuries. However, paresthesia injuries from a nicked nerve do not seem significant enough to pursue a lawsuit, especially when such injuries are a known risk from the surgery. Also, the injuries are sensory and not motor.
Defense verdict. A 56-year-old woman went to urologist Dr. Samuel Kriegler. Tests were done and were reviewed, leading to a diagnosis that one of the woman’s ureters was obstructed by a stone. It was recommended that the woman have the stone removed (ureteroscopy). During the dilation part of the procedure, which is done with a small balloon, the woman’s ureter split. The damage was repaired in a follow-up surgery that included insertion of a ureter drain, which was removed after one month. The woman claimed that she suffered urological difficulties for two months after the surgery. The woman further claimed that the ureteroscopy was unnecessary because there was in fact no stone and that the ureter ruptured because the balloon was not properly positioned. The defense claimed that the test results had indeed confirmed a stone and that uretal rupture was a known risk of the procedure. (Williams v. Kaleida Health, Kriegler, Kumar Chopra, Pieczonka and Delaware Urological Associates, Erie Co., N.Y.). Plaintiff expert: Jay Copeland, MD. Defense expert: Frederick Tonetti, MD.
RC: The injury was a known risk of the procedure, and the urologist would not have attempted to extract the stone if it were not identified first. I am not sure why an attorney would have taken this case — a case with limited damages.
$125,000 settlement. A 55-year-old woman was recovering from intestinal surgery. Three days after the surgery she was allowed to take a shower. A nurse accompanied her and placed a chair in the shower stall for her. The nurse left the woman unattended and about 15 minutes later, after the completion of the shower, the woman slipped and fell. Her hand was injured. She suffered fractures of two fingers and underwent surgery on one of the hand’s metacarpals. The plaintiff claimed that she continued to have pain in the hand, claimed that she was not properly supervised, and claimed that the chair was placed in the center of the shower stall so as to prevent water from draining properly. The defendant hospital maintained that the floor and shower were not dangerous and that the shower room was equipped with a call button. The nurse in question testified that the plaintiff had been instructed to press the call button once she was done showering. A bifurcated jury found liability on the part of the hospital, but also found the plaintiff 30 percent at fault. A settlement was reached at the start of the damages phase of the trial. (Hyatt v. South Nassau Communities Hospital, Queens County, N.Y.). Plaintiff experts: Herbert Braunstein, PE, Leon Edelstein, MD. Defense experts: Irving Lustrin, MD, Arthur Weber, MD.
RC: Even though the plaintiff was functional and fairly young, the nurse should not have left her alone. She was post-op from a major surgery and still under the effects of strong medicines, and not fully in control.
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