Bad outcomes are not always the result of medical malpractice. Most medical procedures have known risks, and just because the outcome was not what was desire does not mean the physician or healthcare professional did anything wrong. 

Unfortunately, however, patients sometimes assume that if the end result is not positive, then malpractice has been committed. When you combine this with plaintiffs’ attorneys who are willing to take on any case, regardless of the facts, a lawsuit can occur even when it is unjustified.

Dr. M, 49, was an urologist who shared a small practice with two other urologists. The practice was busy. Most of Dr. M’s patients were referred by their primary care physicians. One such patient was Mrs. K, 56, who had been referred after complaints of difficult and painful urination. Initial tests revealed that one of Mrs. K’s ureters was being blocked by a stone. When the patient returned to the office for the results of her tests, Dr. M informed her about the stone and recommended an ureteroscopy. Mrs. K was anxious about the procedure, so the physician spent at least 15 minutes explaining it to her. 

When the patient asked what the risks were, Dr. M told her and then documented in her file that he had discussed the procedure and the risks with the patient. She agreed to have the ureteroscopy, and it was scheduled for later that week.


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Dr. M performed numerous ureteroscopies a year, and did not expect this one to present any problems. However, during the dilation part of the procedure, which used a small balloon to widen the ureter, Mrs. K’s ureter split. A follow-up surgery was performed to repair the damage, and a ureter drain was inserted. Mrs. K was extremely distressed at this turn of events, and expressed this to Dr. M.

“It is unfortunate,” the physician said, “but having the ureter split during the dilation is a risk, and is one that I did tell you about when we discussed the procedure.”

Mrs. K was dissatisfied with the physician’s explanation and several months later her son suggested that she call one of the plaintiff’s attorneys whose ads he had seen on local billboards.  The patient did so, and soon was in the attorney’s office, complaining about her treatment by the urologist.

“I had problems for two months after the surgery,” she told the attorney. “And frankly, I think the surgery was unnecessary to begin with! I don’t think I had a stone at all. And the doctor must have screwed up with that balloon thing.”

The attorney took on the case, and Dr. M was notified. His defense attorney had the medical records looked at by an expert and agreed that Dr. M had done nothing wrong. This was simply a possible outcome when performing the procedure. The defense attorney told Dr. M that he was prepared to go to trial if necessary.

The case did, in fact, go to trial. At trial, the plaintiff testified about the pain and discomfort caused by the mishap, and suggested that perhaps the surgery was unnecessary in the first place. The plaintiff also argued that perhaps Dr. M had not properly positioned the balloon, leading to the split ureter. The defense argued that the tests conclusively showed a stone, and this was verified by the defense expert. They also contended that Dr. M had done nothing wrong, and that the damage was a known risk of the procedure, and Mrs. K was informed of that risk. The defense produced the patient file detailing that Dr. M had described the benefits and risks of the procedure to Mrs. K.

The jury returned after a very brief deliberation with a verdict for the defense.