An x-ray request form wrongly stated that a patient’s urologist had recommended stone removal by percutaneous nephrolithotomy.
Dr. W, 56, was an experienced urologist in a small suburban community in the South. His surgical skills and common-sense approach earned him the trust of his patients. Many of his cases involved renal stones, and one such case involved him in a malpractice suit.
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The 45-year-old patient had a 20-year history of occasional urinary tract lithiasis. The stones were less than 3 mm in diameter, and he had always been able to pass them. But this time, he arrived for his appointment writhing in pain. Dr. W took one look and sent him to the hospital for “morphine and moxie,” i.e., the patient was to pass the stone if he could, with the assistance of pain medication and intravenous fluids.
On arrival at the hospital, the man was given morphine and an IV, but he was discharged the next morning. Within 24 hours, he returned to the hospital in increased pain. He still had not passed the stone and was re-admitted under Dr. W’s care. The IV was reinserted, and he was given more morphine.
The patient was told that Dr. W had scheduled x-rays “to see what was going on.” Those films showed a stone about 5 mm in diameter in the upper third of the ureter.
The man was then moved to a procedures room, where he was told “his doctor would explain everything.” The radiologist then entered, reported that the x-rays indicated “a big stone that needed removing right away.” He outlined the risks and benefits of the procedure of percutaneous nephrolithotomy and implied that Dr. W had already approved the procedure.
“Whatever Dr. W recommends is all right with me,” the patient replied.
The man then asked the radiologist if he had talked with Dr. W. The radiologist said that he had and Dr. W recommended the procedure. He based this response on the x-ray request form that the radiology secretary had filled out when Dr. W telephoned her from the floor. It indicated, wrongly, that Dr. W had requested the percutaneous nephrolithotomy.
Misstating information
In fact, the radiologist had not talked with Dr. W, and Dr. W had not requested the procedure. When the patient told him later that afternoon that he had undergone the surgery, Dr. W commented: “You should never have had that procedure. You could probably have passed that stone yourself. At the worst you could have had external lithotripsy.”
However, based on what the radiologist told him, the patient had agreed to the procedure and signed the consent form. It successfully removed the ureteric stone, but the patient had a slow and painful recovery. An uncomfortable drain into the renal pelvis was kept in place for three days, restricting his movement and making him miserable.
Dr. W placed a ureteric stent in five days after the procedure and before discharging the patient; he later saw him in the office. When the patient asked him about the events before the surgery, Dr. W told him that he had not talked to the radiologist before the procedure and would not have approved it if he had.
Considerably upset, the man went to a plaintiff lawyer and asked him to file suit against the radiologist for operating without informed consent. The lawyer sent the man’s chart to an expert radiologist to bolster his case, but the expert’s report didn’t help. He said he was not qualified to judge the validity of a consent that was based on wrong information from the radiologist.
The plaintiff lawyer decided to proceed anyway, without an expert witness. He filed a suit against the radiologist, accusing him of “battery” by performing a procedure without valid informed consent.
When the radiologist received the court papers, he checked the chart for the informed consent form, and noted with great relief that it was complete, correctly filled out and signed by the patient. Confidently, he forwarded a copy of the form to his insurance agent, who then forwarded it to the defense lawyer. The defense lawyer filed a motion to dismiss and attached a copy of the signed consent form. He was in for a surprise.
Although the judge dismissed the case, he was reversed on appeal. The appellate court ruled that a jury would have to decide the validity of the consent, in view of the radiologist’s false statement to that he had talked with Dr. W, and that Dr. W approved of the procedure. Faced with a jury trial on this issue, the insurance company settled the case for $250,000.
