The surgeon should have ordered a urinalysis prior to performing a circumcision on a 53-year-old man
BY ANN W. LATNER, JD
Dr. U, 41, was a sole urologist in a small community in the Midwest. He'd been in private practice for only two years, but he felt quite positive about his professional prospects and his future—until he was sued.
It all started routinely when a new patient, Mr. K, a 53-year-old man, came in. He was asked
to fill out a medical information form as well as provide his in-surance information before entering the examination room. After skimming the medical in-formation form, Dr. U spoke to Mr. K, and examined him. He discovered a urological lesion that the patient claimed he'd “had for several months and that it just wouldn't heal.” Dr. U recommended circumcision, and subsequently scheduled Mr. K for the procedure the following week.
The surgery was performed in Dr. U's office under local anesthesia. The procedure was routine, and both Dr. U and the patient expected a positive outcome. However, serious problems soon developed. Over the next three months, Mr. K kept returning to Dr. U's office with a host of issues, including pain, an unusual protrusion, urination problems, and lack of sensation. Then Mr. K abruptly stopped coming to Dr. U's office, or calling, and sought the help of another physician.
The new physician ordered a urinalysis that indicated Mr. K had diabetes. When the new physician asked whether Mr. K was aware that he had diabetes, the patient answered that he was aware. “Do you take medication?” queried the physician. “No, I just try to eat healthy and exercise sometimes,” replied Mr. K. “Did you tell your previous doctor?” asked the new physician. “He didn't ask,” replied the pa-tient. “Did Dr. U do a urinalysis before your circumcision?” asked the physician. “No,” replied Mr. K, “Should he have?”
Diabetes hinders recovery
Armed with information from his new physician that his un-controlled diabetes was probably responsible for his poor recovery from surgery, Mr. K hired a plaintiff's attorney. The attorney immediately hired an expert board-certified urologist. The expert stated that Dr. U should have performed a urinalysis prior to surgery. Had he done so, said the expert, he would have been aware of the diabetes and could have worked with the patient to get the condition under control to avoid complications. The attorney began an action on behalf of his client, suing Dr. U for negligence for failing to order a urinalysis prior to surgery, and alleging that the urologist also was negligent in failing to properly treat the postoperative complications.
At trial, the expert testified that it was his opinion that Dr. U should have checked Mr. K for diabetes before performing the surgical procedure. According to the expert, failing to check for diabetes was a departure from the standard of care, and Dr. U had breached his duty of care to Mr. K.
Mr. K testified regarding the pain and discomfort he had experienced and was still experiencing. His attorney asked him about the medical form he filled out in Dr. U's office. “Did you put down that you have diabetes when you filled out that form?” asked the attorney. “No,” replied Mr. K. “Why not?” queried the attorney. “Because it didn't ask if I had diabetes,” said Mr. K. “I never saw the word ‘diabetes' on there.”
The defense attorney pounced on Mr. K during cross examination. After making Mr. K state that he knew that he had diabetes, he launched into a line of questions about the medical form that had been filled out in Dr. U's office.
“The form asked if you had any medical conditions, didn't it?”
“Yes.”
“And it asked you to write
down what the medical conditions
were. There was a line under-neath the question for writing, wasn't there?”
“I guess so.”
“Did you believe that diabetes wasn't a medical condition?”
“I guess I expected it would ask specifically about things like that.”
After six hours of deliberation, the jury found Dr. U 54% at fault for Mr. K's injuries, and Mr. K 46% at fault. The jury awarded $200,000 for past and present pain and suffering and $1,750,000 for future pain and suffering.
Legal theory
Comparative negligence is a defense used to mitigate the amount that a defendant may have to pay to a plaintiff for damages. The defense is based on an assessment of the plaintiff's fault, and then the award of damages to the plaintiff is reduced in direct proportion to the plaintiff's percentage of fault.
In this case, Mr. K was found to be 46% at fault for his own injuries due to his negligence in not telling his physician that he had diabetes. His total award, therefore, is reduced by 46%. Dr. U was 56% at fault due to his failure to inquire about diabetes or perform a urinalysis prior to surgery. He is responsible for paying 56% of the $200,000 and $1,750,000 in damages.
Protecting yourself
Dr. U's mistake, besides not having a more in-depth medical form, was not to take a thorough history from Mr. K. Spending the extra time to speak with patients and question them about their medical his-tory is well worthwhile. A few minutes spent speaking with a patient can unveil a host of issues. While a check box for diabetes on a medical form is certainly a good place to start, the personal conversation can't be replaced.
A comprehensive medical form, a thorough conversation about medical history, and basic screening tests (urinalysis and/or blood) are clearly good insurance before performing any surgical procedure, no matter how routine it may seem.