A construction worker’s accident left him permanently impaired, but was he injured on the job or at the emergency department?


When the emergency department nurses had difficulty passing a urethral catheter, Dr. S was the urologist on call. One such case led to a malpractice suit.

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The 60-year-old patient had been working at a construction site when the scaffolding he was standing on gave way. He plummeted about 10 feet, before landing astride a steel beam, causing

direct trauma to the bulbar part of the urethra.


Dr. S, 45, was called as soon as the man arrived at the ED complaining of severe perineal pain

and an urgent need to urinate. The ED nurses, concerned about the potential for complications when a patient urinates with a ruptured urethra, told the man to resist and tried to pass a 16F Foley catheter. Dr. S responded to the page at this point and asked them to hold off until he could get there. “We can hold off,” replied one of the nurses, “but I don’t think the patient can.”


However, Dr. S arrived in time to pass a 20F Foley and successfully drained the bladder before the patient’s restraint gave way.


As soon as he received his hospital bill, the man hired a plaintiff’s attorney to file a worker’s compensation claim. While looking through the medical records, the attorney decided to try for a malpractice claim against Dr. S at the same time. He sent the chart to a urology professor at a university medical school to review as a plaintiff’s expert.


Dr. S “should have performed a urethrogram before inserting a Foley to determine where the urethra was damaged,” the professor opined. “As it is, he probably caused the urethral damage” that resulted in, among other things, the patient’s permanent sexual impotence and urinary difficulties. Armed with this report, the plaintiff’s lawyer immediately filed the malpractice suit.


Catheter controversy

It took about a year for the case to get to the deposition stage, where the patient described the accident and his experience at the ED. He recounted his urgent need to urinate and how he managed to hold off until Dr. S inserted the Foley. It was then, the patient said, that he experienced severe pain and burning in the perineum. He believed that that was when the damage was done, causing his impotence and slow urination.


The professor backed up this assertion. He repeated his opinion that a pre-catheter urethrogram should have been taken and that it would have left the man symptom-free once he recovered from the injuries caused by the fall.


Dr. S was deposed next. He attributed the patient’s ongoing symptoms to either the original accident or the nurses’ unsuccessful attempts to set up the Foley before he arrived. His own catheterization went very smoothly.


An expert urologist for the defense stated that a urethrogram had not been necessary according to the accepted standard of care. Besides, he insisted, it was unlikely that Dr. S—or the nurses for that matter—had injured the pa-tient’s urethra.


After the last witness was deposed, the plaintiff’s lawyer and the defense insurance adjuster tried to negotiate a settlement. When they failed, the case headed for trial, where Dr. S got a big surprise. By speculating that any iatrogenic damage would have been caused by the nurses before he arrived on the scene, Dr. S set the stage for an “alternate defendant” or “empty chair” defense. But the defense lawyer neglected to formally notify the court and the plaintiff that she might use that strategy.


This oversight led the judge to exclude any attempt to blame the nurses and to warn that he would declare a mistrial if the nurses were mentioned and the plaintiff lost the case. And that is exactly how the trial played out.


The plaintiff’s lawyer presented his case as it was laid out in the deposition. Then it was Dr. S’s turn. He testified that the man’s ongoing symptoms probably originated with the fall but could not resist adding that they might have been caused by the ED nurses.


The jury voted unanimously to acquit Dr. S, but the plaintiff’s lawyer immediately moved for a mistrial. Agreeing that his order had been violated, the judge granted the request.

Dr. S could not believe it. He sat back in his chair and groaned as he faced the prospect of going through the whole process all over again. Eventually, suffering from litigation exhaustion, he agreed to settle for $150,000.