Even though the doctor told the man to continue with antibiotics after his scrotal surgery, the patient never filled the prescription. 
  
Dr. E was a well-respected urologist whose pragmatic approach and wide experience gave him a reputation as the “go-to” man when things got tough. As a result, he often found himself used as a “superconsultant” on difficult cases, struggling with critical clinical situations that did not always have a positive outcome.
 
One such case involved a 64-year-old patient who underwent hernia surgery for a right-sided indirect inguinal hernia. There was a small congenital sac, which had enlarged over the years and contained adherent omentum. A general surgeon performed a conventional hernia repair, and the man did well postoperatively, except for the development of a large tender swelling in the ipsilateral scrotal sac.
 
Dr. E was called in for a consultation. Transillumination and a scrotal ultrasound confirmed the presence of epididymal swelling and scrotal fluid, and aspiration produced a cloudy, serous fluid that to Dr. E suggested an early infection of the surgical area. He recommended exploration and drainage, together with antibiotics. The patient then made an unusual request: while exploring the testicle, could Dr. E also remove an undescended testicle on the other side? Dr. E, in what he later regarded as a mistake, promised that he would.
 
The next day, he drained the scrotal sac of semipurulent mate-rial, examined the testicle (which appeared to be somewhat swollen and discolored), and then removed the undescended testicle through an inguinal incision on the other side. He took great care to avoid cross-contamination between this clean area and the presumed infection in the other scrotum.
 
His efforts were partly successful, in that the patient’s inguinal incision showed no sign of infection. The left scrotum, however, developed a raging postoperative infection two days after discharge, on the third postoperative day. The patient was readmitted and started on clinda-mycin. After a week on antibiotics, Dr. E performed another exploration of the left scrotum and removed a gangrenous testicle and epididymis. After that, the scrotum healed quickly and the patient was discharged.
 
Blocked blood supply
 
The patient and his family consulted a lawyer, who had the chart reviewed by an expert urologist. When the report criticized Dr. E for damaging the testicle’s blood supply during surgery, thus creating an ischemic testicle and a nidus for infection, the lawyer filed a malpractice suit against Dr. E and the hospital.
 
During depositions, the plaintiff expert testified on video from his distant office. He said the post-operative infection resulted from inadequate treatment of the fluid collection and damage to the blood supply of the testicle. The defense expert, who was local, argued that the infection was a recognized risk of hernia surgery and was present before the drain-age operation. He pointed to a prescription for antibiotics, which had been given the patient upon his discharge from hospital, that he had not filled or taken. At trial, the patient admitted that he had not filled the prescription. The plaintiff’s expert substituted his videotape deposition for an actual court appearance.
 
The next day, the defense lawyer presented in person. Dr. E made an impressive witness, stating his records of the case in a calm manner and explaining each step in his decision making process to the jury. He also underscored the pertinent fact that the patient had been noncompliant with his instructions. Dr. E was followed by the urology expert for the defense, who asserted that the infection was a recognized complication of surgery and that the patient should have continued the antibiotic treatment for it to be effective. The jury deliberated for two days, but couldn’t agree on a verdict. The case was tried again a year later, and that jury found in favor of Dr. E.
 
Legal background
 
The appearance of witnesses, and their demeanor, is all-important in a jury’s perception of them and their claims. The defendant who appears in person—and has his experts appear in person—has a distinct advantage over the “talking head” of depositions on videotape. In this case, the de-fense won an advantage by having Dr. E and the defense expert appear live.
 
In most states, a jury of 12 must vote 10-2 or better to secure a verdict in a malpractice trial. If the vote is less than this, then the jury is undecided, or hung. In this case, the first trial ended in a hung jury with an evenly split vote. In the second trial, the vote was 10-2 in Dr. E’s favor. “I liked him” one juror said later. “He explained why he did what he did.” On such slender reeds is the house of justice built.
 
Lessons learned
 
Some malpractice cases go forward even though the patient-plaintiff ignores his doctor’s instructions. During litigation, the noncompliance will become a subject of dispute. In this case, a crucial point in the defense presentation was that the patient had been discharged on antibiotics after Dr. E’s first exploration, but he had neglected to continue taking them. It was easy to prove, because Dr. E had made a notation as to the antibiotics prescribed on discharge. Without that notation, the case would have become a battle of memories in which the patient has equal credibility with the physician.
 
The physician who accepts difficult and complex cases runs special malpractice risks because such cases often result in adverse outcomes. It helps to explain to the patient, and especially to the patient’s family, that complications of surgery have a higher incidence of adverse outcomes, especially when a treatment regimen is prescribed.