Dr. L, 52, was an urologist with a private practice, who specialized in the treatment of erectile dysfunction. One of his patients was Mr. E, 60, who came in complaining that his inability to maintain an erection was interfering with his marriage.
Dr. L went over various options with the patient, who eventually decided on elective penile implant surgery to remedy the problem. In his patient intake form, Mr. E noted that he had high blood pressure and diabetes, but Dr. L did not mention that this could be an issue.
The procedure was scheduled and an anesthesiologist, Dr. A, 46, was retained to provide anesthesia. Dr. A spoke briefly to the patient before putting him under, and then Dr. L performed the implant surgery. The procedure was completed as expected, with no immediate problems. However, a little over a week post-surgery, Mr. E developed a severe infection leading to gangrene of the penis. Despite attempts to salvage the organ, it eventually required amputation.
When Mr. E recovered from the amputation, he and his wife sought the counsel of a plaintiff's attorney to determine whether they could sue. The attorney called in a consulting physician to go over the medical records. After reviewing the records, the expert physician told the attorney that Mr. E should never have been cleared for surgery.
“You have here a patient with both high blood pressure and uncontrolled diabetes,” the doctor said. “Every physician knows that uncontrolled diabetes makes a patient far more prone to infections. Mr. E was not in good enough physical shape for such an operation, and he should not have been cleared for it. It appears that the urologist never even noted the patient's blood glucose levels in the chart, or gave the patient any information regarding the effect of diabetes on wounds and the likelihood of infection.”
Armed with this information, the plaintiff's attorney filed a lawsuit on behalf of Mr. and Mrs. E against both Dr. L, and Dr. A, the anesthesiologist. Both physicians consulted with attorneys provided by their malpractice insurance, but both received different advice.
Dr. L's attorney advised him to settle the case out of court. “Unfortunately,” the attorney said, “we would be hard-pressed to prove that Mr. E was an appropriate candidate for surgery with his medical history. The jury would wonder why you didn't advise him about the diabetes possibly being an issue.”
Dr. L hung his head. “I have a lot of cases,” he muttered.
Dr. A, however, received different advice from his attorney. “I don't think you should settle,” his attorney said. “Isn't it the urologist's job to clear the patient for surgery?”
Dr. A nodded. “Yes, I'm not the one who does it. My interaction with the patient is brief, and ends once the epidural catheter is removed.”
“Okay,” the attorney replied. “We'll just play this out.”
Dr. L, the urologist, settled out of court with the plaintiff for an unspecified sum, leaving only Dr. A as a defendant in the case. But the plaintiff pushed on, and the case went to trial.
The trial required several days of testimony. The plaintiff argued that the anesthesiologist was the only one who cleared him for surgery, and that the anesthesiologist should be held liable for his unfortunate outcome. The defense argued that it wasn't the anesthesiologist's job to clear anyone for surgery, and that the plaintiff's infection was probably caused by his failure to follow post-operative instructions. The case went to the jury, which deliberated for half an hour before finding the anesthesiologist not liable for the plaintiff's amputation.

Legal Background

It is quite common for a plaintiff to sue numerous defendants in a medical malpractice case. Often, a hospital or physician's practice as well as any physicians involved and sometimes nurses or physician assistants are all sued as part of a case. In these situations, a jury often looks at the percentage of liability for which each defendant is responsible—assuming the defendants are found liable. However, in this case, only two physicians were sued.
Once the urologist, who was probably the only one who should legitimately have been sued, settled out of court, the entire case was resting on the anesthesiologist. There simply was not enough evidence to find the anesthesiologist liable. In fact, even pursuing the case against the anesthesiologist, once he was the only defendant left, was a waste of the court's time and resources.

Protecting Yourself

As with many cases, the lesson learned from this situation is about communication. Clearly, Dr. L did not properly communicate with his patient. He was seemingly unaware of the patient's other health problems, indicating that he did not conduct a proper examination or take a thorough enough medical history. After the surgery, since he had not taken the time to familiarize himself with the patient's co-existing medical problems, Dr. L did not properly instruct him to be aware of infection or how to avoid it.
It also appears that Dr. L cleared the patient for surgery without being completely aware of the extent of his diabetes or hypertension, and without taking into consideration how those conditions might affect the outcome of the surgery. No matter how many patients you have, it is essential to take the time to get a thorough medical history and to communicate properly with your patient. Doing that might have avoided this very unfortunate outcome.
Dr. A, the anesthesiologist, had the misfortune of being the only one left “holding the bag” once the urologist settled out of court. While it would have made sense for the plaintiff to drop the case against Dr. A once the urologist was no longer a party, a plaintiff often wants his day in court, whether it is against the right defendant or not.