Urethra nicked during excision procedure

Acacia Brush Perko, Esq.

A 43-year-old maintenance man was referred to the defendant general surgeon for a vasectomy and for exploration and possible removal of a penile lump. During surgery, the defendant surgeon viewed and diagnosed the lump as a sebaceous cyst. He then performed the vasectomy, without complication.

In a subsequent surgery, while he was attempting to excise what he saw as that cyst, he nicked the plaintiff’s urethra. The plaintiff testified that the surgeon told him afterward that “he may have nicked it,” but the surgeon denied ever making such a statement.

The plaintiff then experienced trouble urinating and was referred to a urologist. The plaintiff’s problems continued, with the thought that leaking urine from the nick caused a massive internal inflammation as well as a fistula. The plaintiff then underwent 8 surgical procedures, including urethral reconstruction and the insertion of an inflatable penile prosthesis.

Urethra required reconstruction

After all his surgeries, the plaintiff was left pain free and able to urinate normally. However, approximately 2 inches of his urethra required reconstruction.

The plaintiff filed a medical malpractice complaint against the surgeon, alleging that he was negligent in diagnosing the lump as a sebaceous cyst and negligent in nicking the urethra. The plaintiff maintained that the lump was just a plaque formation that was the result of Peyronie disease and did not require surgical intervention.

Before the trial, the parties exchanged written discovery and participated in fact and expert depositions. In discovery, the plaintiff claimed past medical damages of $138,500, which did not include the cost of the surgery for the implantation of the penile prosthetic device, which was donated by a concerned charity.

The plaintiff also claimed the likely need for a future replacement prosthesis, estimated at a cost ranging from $25,000 to $75,000.

The plaintiff’s standard-of-care expert, a urologist from Stanford, testified at deposition that at a minimum, the surgeon should have consulted a urologist when he encountered the lump during the vasectomy. He opined that had the lump been properly diagnosed and treated, no surgical intervention would have been needed. He stated that a failure to consult the urologist was a breach in the standard of care and that nicking the urethra during the second surgery to remove the lump was also a breach in the standard of care.

The defendant’s experts testified at deposition that a misdiagnosis of the lump was not an unreasonable, negligent act, especially on the part of a general surgeon engaged to investigate and take decisive action to remedy it, and it certainly did not fall below the applicable standard of care. Given that this was the case, and given the difficulty of trying to remove that lump, nicking the urethra during that remedial action of removal wasn’t negligent, either.

Defendant moves to exclude opinions of urologist

Before the trial, the defendant moved to exclude the opinions of the plaintiff’s urologist from Stanford, arguing that because he was a urologist, he could not comment on the standard of care governing the surgeon defendant. The defendant lost that motion, at which point the plaintiff demanded $425,000 to settle. The defense refused and did not make any offer prior to trial.

At trial, the experts on both sides testified consistent with their pretrial depositions.

The jury deliberated for 5.5 hours and returned with a verdict of negligence against the surgeon and awarded $581,500 to the plaintiff. That award included past medical bills of $138,500, the plaintiff’s likely future medical bills of $75,000, $18,000 in past wage losses, and then $350,000 in past and future “pain, suffering, disability, disfigurement, and loss of enjoyment of life.”

LEGAL PERSPECTIVE: In some states, in order to be qualified to testify, experts rendering opinions on liability issues in a medical claim must practice in the same or substantially similar practice as the defendant. In these states, defense counsel may successfully exclude opinions from experts who are not qualified.

However, this case study is from a jurisdiction where the law on expert testimony is not as clear, requiring only that an expert rendering opinions on liability issues in a medical claim possess scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or determine a fact in issue. As a result, the defense was unable to exclude the plaintiff’s star witness, the urologist from Stanford, whose testimony carried the day.