Patient undergoing BPH procedure sues for negligence and malpractice

Acacia Brush Perko, Esq, writes, "A physician proposing a treatment has a duty to provide a patient with enough information about material risks and available options to enable the patient to give informed consent."

On August 22, 2007, a 70-year-old man presented to a urologist complaining of difficulty urinating, a weak urinary stream, and the sensation that he could not empty his bladder. A prostate ultrasound revealed a moderately enlarged prostate gland and significant residual urine. The patient alleged that the urologist recommended various conservative treatments that did not reduce or resolve his symptoms.

After a follow-up evaluation, the patient underwent a cystoscopy and internal urethrotomy with a holmium laser. The cystoscopy showed the patient’s prostate as having trilobar hypertrophy with obstruction. The bladder was hypotonic and heavily trabeculated, and there was a moderately large diverticulum on the left posterior inferior wall.

The urologist recommended transurethral microwave thermotherapy, an in-office treatment involving the gentle application of heat to the prostate. According to the patient, the urologist provided him with a brochure about the treatment. However, the patient claimed that neither the urologist nor the brochure disclosed or described any associated risks, complications, dangers, contraindications, or warnings. The patient also alleged that the brochure indicated the procedure was to be performed by a qualified physician and not by any other medical personnel.

On October 19, 2007, the patient underwent treatment. The patient claimed that the treatment had been administered by a nurse, not a qualified physician, and that the urologist had not been present when it was rendered. The patient further claimed that the nurse performed the treatment improperly, resulting in internal injuries that worsened his urinary problems and created a permanent need for a catheter to urinate.

The patient sued for negligence and medical malpractice. The patient’s counsel alleged that the urologist had failed to properly inform the patient of the risks and complications associated with the treatment. It was further alleged that the urologist, following the procedure, stated that the patient would be “great for a thousand years,” which falsely assured him that there were no risks associated with the procedure.

The patient’s expert testified that the treatment is not effective for cases involving residual urine in excess of 200 cm3, prostate volume of less than 30 cm3, and patients without normal bladder function. The expert argued that the patient’s residual urine quantity well exceeded 200 cm3,his prostate volume was 27.05 cm3, and his bladder function was “hypotonic.” The expert further criticized the urologist for not having a qualified physician render the therapy. The expert concluded that the patient was not a good candidate for the procedure and that he was never properly informed of the relevant risks, which, if disclosed, would have led him to refuse the treatment.

The urologist claimed that the patient came to him to avoid surgery previously recommended by other urologists. The urologist claimed that the patient did not want to undergo surgery for several reasons, including underlying medical problems that made surgery unfavorable. To avoid surgery, the urologist advised the patient of the transurethral microwave option and advised that it would be the only treatment, short of surgery, that could provide relief. The urologist claimed that he thoroughly explained the recognized risks associated with the treatment and that the patient was not an “optimal” candidate for the therapy. However, there was a possibility that the treatment could provide sufficient improvement for the patient to avoid surgery. Finally, the urologist stated that he and his LPN were able to administer the treatment without problem or difficulty.administered the treatment with his LPN without problem or difficulty.

Experts for the defense testified that the urologist did not veer from the standard of care by offering a safe alternative to surgery. The defense experts both opined that the treatment administered did not hurt the patient. The treatment had simply not been successful, which is often the case.

After a 5-day trial and 2 hours of deliberation, the jury rendered a verdict for the defense, finding that the urologist had not been negligent in treating the patient.

Legal Perspective

A physician proposing a treatment has a duty to provide a patient with enough information about material risks and available options to enable the patient to give informed consent. This includes the potential risks and possible benefits of each different treatment option. Then, the physician must receive consent from the patient before embarking on any treatment option.

Outside of emergency situations, physicians cannot substitute their judgment for the patient’s consent. If a physician fails to obtain informed consent, he or she may be liable for medical malpractice if a reasonable person in the patient’s position would have withheld consent had the information been presented.