68-year-old with advanced prostate cancer says no informed consent to non-nerve-sparing radical prostatetomy that leaves him incontinent and impotent. Complications during and following surgery.
- Case Name: John Doe v. Roe M.D.
- Court and Case Number: Los Angeles Superior Court / LC 096724
- Date of Verdict or Judgment: Friday, April 08, 2016
- Date Action was Filed: Thursday, March 22, 2012
- Type of Case: Medical Malpractice
- Judge or Arbitrator(s): Hon. Elaine Mandel
Plaintiffs: John Doe, 68
Defendants: Roe M.D. (urologist)
- Type of Result: Jury Verdict
- Gross Verdict or Award: Defense verdict.
- Trial or Arbitration Time: 9 days.
- Jury Deliberation Time: 30 minutes.
- Jury Polls: 12-0 informed consent was provided; 12-0 no negligence.
- Post Trial Motions & Post-Verdict Settlements: None. Judgment entered. Defense will not file a memo of costs.
Attorney for the Plaintiff:
Neil C. Newson & Associates by Neil C. Newson, Beverly Hills.
Ahrony, Graham, Zucker, LLP by Orly Ahrony, Santa Monica.
Attorney for the Defendant:
Schmid & Voiles by Rodney G. Tomlinson, Los Angeles.
Plaintiff’s Medical Expert(s):
Mark Dall'Era, M.D., urology, Davis.
Jo Anne Kaplan, Ph.D., psychology, Tarzana.
Defendant's Medical Expert(s):
Stuart Holden, M.D., urology, Los Angeles.
Facts and Background
Facts and Background:
The 68-year-old plaintiff was diagnosed with prostate cancer. On March 24, 2011 he underwent an open radical prostatectomy at Providence Tarzana Medical Center. During the surgery, a rectal tear occurred. It was recognized and repaired using a two-layer approach. In addition to the two sutured layers, defendant Dr. Roe utilized cadaveric fascia as an additional barrier over the repair.
Plaintiff was discharged after a 5-day hospitalization. Plaintiff returned to see Dr. Roe on April 6, 2011. The catheter was removed. Plaintiff was able to urinate "normally" until April 22, 2011. A bladder neck contracture developed (scar tissue), closing off the urethra. Plaintiff strained to empty his bladder and a fistula developed (opened). Dr. Roe placed a catheter to keep the urethra open and allow the fistula to heal. 5 months later, the fistula healed. However, the plaintiff continues to be incontinent of urine. He has undergone a number of procedures at UCLA.
1. Lack of informed consent: Dr. Roe performed a non-nerve-sparing surgery which resulted in the inability to achieve an erection. Plaintiff claimed that he requested a nerve-sparing procedure;
2. Once the rectal tear occurred, a general surgeon should have been called to repair the tear;
3. The one-inch rectal tear was improperly repaired. The use of cadaveric fascia ("dead tissue from a dead person") was unheard of and experimental. This resulted in the fistula (caused the breakdown);
4. The severity of the bladder neck contracture was a further indication that the treatment was improper. Ongoing inflammation and infection following the surgery resulted in the extensive scar tissue which closed off the urethra;
5. A referral to a general surgeon was again required when the fistula first occurred. The delay in making the referral breached the standard of care.
1. The plaintiff had extensive, aggressive prostate cancer. The open radical prostatectomy was successful in removing the cancer. It has been 5 years since the surgery and the plaintiff is still cancer free. Dr. Roe cured the cancer;
2. The issue of nerve-sparing vs. non-nerve-sparing was discussed in two meetings with the plaintiff and his wife before surgery. It was contained in the consent form signed by the plaintiff. Further, a reasonable person in this situation would have consented to the non-nerve-sparing procedure;
3. Based on defendant's training and experience it was appropriate for him to repair the one-inch rectal tear;
4. The two-layer repair with the cadaveric fascia was a proper exercise of medical judgment. Further it would be speculation that it was the use of cadaveric fascia which caused the break down (fistula);
5. The bladder neck contracture is a recognized risk of this type of procedure. It was the bladder neck contracture which caused the fistula;
6. The follow-up plan of soft dilation by the defendant once the fistula developed was reasonable and proper;
7. Sphincter replacement surgery has been recommended by plaintiff's current treating physicians. This procedure more likely than not would allow the plaintiff to be free of the condom (external) catheter. As such, plaintiff has not mitigated his damages.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff underwent an open radical prostatectomy for prostate cancer. Rectal tear during surgery; a bladder neck contracture; a fistula. He remains incontinent of urine. He has undergone additional surgeries. He requires a condom (external) catheter to be attached to his penis to allow the urine to drain into a bag which is strapped to his leg. He is no longer able to achieve an erection and was diagnosed with major depression requiring medications. The plaintiff continues to be under the care of a psychologist.
- Special Damages Claimed - Past Medical: Stipulated to past Medicare amount of $17,621.
- Special Damages Claimed - Future Medical: Ongoing care in unspecified amount.