50 Shades of Malpractice

Mark Crane

Disclosures

February 27, 2017

In This Article

Penile Amputation; Honesty Didn't Pay

Florida

In an extraordinarily unsettling case, an anesthesiologist who cleared a man for penile implant surgery was ruled not responsible for the gangrenous infection that led to the amputation of the man's penis, according to a 2012 Miami jury verdict.

The patient, Enrique Milla, then 60, and his wife sued Dr Laurentiu Boeru, claiming that Boeru overlooked his diabetes and high blood pressure and never should have cleared him for surgery, according to a report by Courthouse News Service. The surgery was for a penile implant to help with the patient's erectile dysfunction. The physician testified that the infection was the result of the patient's failure to follow postoperative instructions. A urologist in the case settled out of court.

The jury took half an hour to reach its verdict. The case was somewhat unique in that plaintiff Milla was deported to Lima, Peru, shortly after filing the complaint 3 years earlier. He testified via Skype. An expert witness for the plaintiff couldn't attend the trial, and his deposition testimony was read to the jury. Milla's attorney said those factors impeded his case.

Dr Boeru was gratified by the verdict but said that the 3-year process "damaged my family life [and] my personal life."

Georgia

Was a second operation necessary? Many experts urge being conservative when deciding whether or not to perform an additional operation.

A 46-year-old cell phone customer service representative went to a hospital ED in 2012 with abdominal pain, vomiting, and nausea. A CT scan showed a small-bowel obstruction.

Surgeons operated, but also did a second procedure to correct a gastric outlet obstruction that kept the patient's stomach from emptying. That operation includes cutting a nerve to the stomach and intestine to reduce acid production. It left the patient unable to eat any solid food without becoming extremely nauseated. Because of that complication, she spent 45 days in the hospital, her lawyers said. She can only drink smoothies or eat pureed foods.

Plaintiff's medical experts testified that she never had gastric outlet obstruction and that the procedure should be done only for diagnosed long-term gastric outlet obstruction typically caused by either a tumor or chronic peptic ulcer disease, according to an article in the Daily Report, a Georgia legal publication.

The surgeons never made a settlement offer and contended they were right to do the procedure, but they encountered complications from scar tissue left by the patient's chronic gastrointestinal problems and prior abdominal surgeries.

In June, a jury awarded the woman $4 million.

Hawaii

Did physicians miss a key diagnosis by being conservative in their diagnosis effort, or were they being careless?

A jury last year awarded $5.62 million to a flight attendant whose cancerous tumor was left undiagnosed for 2 years. During that time, it grew from the size of a lima bean to the size of a fist.

Jeff Kim, 43, was examined in 2008 by several physicians at Straub Hospital for chronic pain in his mouth. He was told he was cancer-free when in fact a tumor was growing in his neck. None of the doctors ordered an MRI that he believes would have detected the tumor, according to a report in Hawaii News Now.

Two years later, as the pain persisted, a private oral surgeon ordered an MRI and the cancer was found. Kim underwent nine operations and needed major reconstructive surgery on his face. Surgeons took a bone from his leg and made it into his jaw. They took chest muscle to reconstruct his mouth, and skin from his abdomen is on his cheek.

"We could have caught this at the early stages, and it would have been one day in the hospital for surgery and 5 weeks for radiation, and I would have been back to work," Kim told reporters. He's now back at work as a flight attendant for Hawaii Airlines.

Idaho

Many urge doctors to always reveal errors, but a lawsuit can arise from being honest and telling the patient that you made a mistake he or she didn't even know about. Is honesty still the best policy?

A lawsuit against an orthopedist who admitted operating at the wrong level of the patient's spine and installing a plate to stabilize the spine was dismissed by a trial judge. That decision was upheld in 2011 by the Idaho Supreme Court in a 3-2 vote.

The legal decision turned on whether the patient filed his lawsuit before the 2-year statute of limitations expired. The surgeon didn't learn that he had actually operated at the T5-6 level when he'd planned to operate at the T6-7 level until 26 months later, when the patient sought him out again after a work-related injury. Amazingly, the patient had no complaints of pain or disability after the mistaken surgery.

MRI showed that the surgeon had operated at the wrong level. He informed the patient of the mistake and referred him to another surgeon for the new injury. The patient sued, but the courts ruled that he filed suit too late. The Supreme Court justices argued over the definition of an injury, ultimately finding that it occurred at the initial surgery even though the patient hadn't known of the mistake and actually felt fine. Because of that delay, the statute of limitations had expired.

Idaho has a "foreign-object exception" that can extend the statute of limitations from the time it is discovered. The patient argued that the plate the surgeon installed in his spine should mean the case could continue. The justices disagreed because the foreign-object exception applies only to the inadvertent leaving of an object and not the deliberate and intentional placement of a device.

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