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Tragic Wrongful Death $12,500,000 Settlement

A 35-year-old electrician learned he had a cancerous lesion in his right kidney in March 2016. He was referred to a urologist who told him and his wife that he required survival removal of the kidney, a nephrectomy. The urologist told them the cancer was Stage I, it would not require chemo or radiation therapy, and the man would return to work in 4-6 weeks with no residual injury. His life expectancy was to be little diminished by the cancer or surgery. That turned out to be wrong.

The Doctor

The patient and his wife did not know the well-concealed history of the urologist. He was in his 50's at the time, and while Board Certified in Urology, he was trouble. He worked for relatively short stints in many midwestern and western states: North Dakota, South Dakota, Iowa, Texas, Oklahoma and Illinois, typically resigning after a few years. In 2012, his last employer compiled a lengthy series of memoranda detailing how difficult and unreasonable a doctor he was. The employer bought him out of his contract and the doctor went to another town and began to practice again with no one the wiser. The details of his 2012 employment critiques were allegedly not learned by the hospital where he next went to work, or if they were, they were ignored. Certainly, this patient needing a nephrectomy never learned these things.

The patient and his wife never learned that the hospital where the doctor began to practice collected 10 complaints about his behavior in the 12 months before May 2014. They did not learn that the President of the Medical Staff started an enforcement action against the urologist when informal attempts to change the doctor's poor behavior were ignored. In trying to persuade the urologist to cooperate, the President of the hospital's Medical Staff wrote him: "I know that the Board of Trustees has a significant investment in your practice and that what you bring to the organization is highly valued. I do not want to see any of that compromised." The urologist did not cooperate with the informal attempts to change the urologist's behavior. Both he and the hospital hired lawyers, more complaints about his conduct were made, a hearing was held, and then finally a "confidential settlement agreement" was reached between the hospital, its medical staff and the urologist in February 2015.

The settlement agreement required the hospital to expunge the twelve complaints that had been made against the doctor. The agreement required the President and President-Elect of the Medical Staff to recuse themselves from any peer review activity involving the urologist. The urologist would receive no poor recommendations or references from the hospital under the agreement-it was a whitewash. All the doctor promised to do was to attend an anger management course. We have no written proof that he ever did. The agreement did not benefit the hospital or its patients. The patients were not told anything about it.

The urologist came up for re-credentialing as a member of the medical staff in January 2016. The twelve complaints were gone and the two doctors who knew the most about the urologist were silenced. The urologist's credentials were renewed for another two years. He was the only urologist on staff and a money maker for the hospital.

The Surgery and Its Aftermath

The nephrectomy took place April 5, 2016. It appeared that all went well. The doctor told the family afterwards: "he was an all-star patient, he'll be fine." Over the next five hours it became clear that things were going badly. The patient's blood pressures gradually dropped, and his pulse increased. His normal pre-op pressures were 145/92. By 5:15 p.m., his pressures were 88/64. His pulse was up to 125 from his usual 80-85. Experts on both sides of the lawsuit (except one) agreed the patient was "hemodynamically unstable" at this point and remained hemodynamically unstable until the end. A nurse informed the doctor of these findings at 6 p.m. He said to try a fluid bolus over 45 minutes; that did not improve the situation. Something was clearly wrong.

The patient was bleeding internally. It was obvious to two nurses that night, it was obvious to nurses in the morning, and it was obvious to other doctors who became involved the next morning. The urologist insisted the patient was not bleeding. He refused to take him back to surgery. He delayed 13 hours before he ordered any blood for the patient; even then, he ordered inadequate amounts. By the following morning when blood was finally ordered, the patient had suffered severe tissue and organ damage due to the blood loss. The urologist still said to all who would listen, "he's not bleeding." 

The patient's wife of nearly ten years asked many times for the patient to be transferred, but the urologist would not do it. Two nurses at separate times "went up the chain of command" to their supervisors to get something done for this unfortunate man but no one ever pulled the urologist off the case, no one told the patient's wife that she could fire the doctor, and no one told her she could insist that her husband be transferred.

At 8 a.m., a hospitalist M.D. told the urologist the patient was bleeding and asked that he take the patient to surgery. The urologist refused. Then the hospitalist asked for a CT scan to prove there was internal bleeding, but the urologist blocked that for 2 ½ hours. Finally, the CT scan was done at 11 a.m. It showed a moderate to large hematoma in the retroperitoneal space, as well as blood in four other locations. The hospitalist learned this and again asked the urologist to take the patient back to surgery. Despite the CT results, the urologist continued to tell the patient's wife "he's not bleeding." He also said "I take care of God and God takes care of my patients. I swear on my child's life your husband is not bleeding." The patient did not go back to surgery. He stayed in the ICU until he arrested shortly after 2 pm.

Remarkably, the patient survived his arrest. He was briefly stabilized and put in an ambulance to make the ten-mile trip to another hospital. He died in the ambulance with his wife following in another car on April 6 at 3 p.m. The autopsy done the next day confirmed more than 2 liters of blood and clotted blood were in the retroperitoneum and that hemorrhage caused the man's death. 

The Lawsuit

After the records were obtained and reviewed by a medical expert as required by Illinois law, a complaint was filed claiming the care of the doctor negligently caused the patient's death. The case was later amended to charge the hospital with negligent credentialing and negligently supervising the urologist who was out of control. All issues in the case were disputed by the hospital and the medical corporation that employed the doctor.

More than thirty depositions were taken by plaintiff's lead counsel, Bruce Pfaff of Pfaff, Gill & Ports in Chicago. Mr. Pfaff hired Dr. Stuart Holden of Los Angeles as his expert in urology. He has practiced medicine for 50 years and has never seen a case like this. Dr. Holden testified that the urologist should have determined that bleeding was at the top of the differential diagnosis considerations by 6 p.m., that a unit of blood should have been given then and if the patient did not improve, he should have taken the patient back to the OR to look for and stop bleeding. Those failures caused the patient's death.

The defense hired two urologists and a hematologist to try to defend the care. One urologist, Dr. David Lieber of Springfield, ended up conceding many of the points made by Dr. Holden. The hematology expert, Dr. Sucha Nand of Maywood, IL, also conceded many of Dr. Holden's points. Within weeks of their depositions, the lawyer who retained those witnesses withdrew them from the case.

The last defense liability witness to try to defend the urologist was Dr. David Albala of Syracuse, NY. In combative testimony, Dr. Albala disagreed entirely with Dr. Holden and with the two other experts the defense had hired (and later withdrew). Dr. Albala denied the existence of the basic medical concepts of "hemodynamic instability" and "differential diagnosis." Incredibly, he called the blood pressures of 53/24 and 68/37 "soft," but not "hemodynamically unstable."

Resolution

The court set for hearing 75 pre-trial motions on the Friday preceding jury selection. Two days earlier, the defense notified the trial judge that it intended to bring "its decisionmakers" to the conference and wished to have a settlement conference before the judge ruled on the motions. The judge agreed. The conference went all day. Before the conference, the defense's best offer had been $6,500,000; during the conference, the offer was increased to $12,500,000, which plaintiff accepted.

The patient's wife of nearly ten years is his sole next of kin. The damage claims included her economic loss of support, estimated to range between $2.3M - $2.6M; her husband's emotional distress during the hospital stay; her grief and sorrow, and her loss of society.

As part of the $12,500,000 settlement, the parties agreed to keep confidential the names of the parties and the court caption for the sake of privacy. It can be reported that the recipient of the settlement is a 39-year-old surviving spouse of her husband, and that the party on whose behalf the insurer paid the settlement is a Downstate Illinois medical corporation on behalf of its physician employee."

Submitted by Bruce R. Pfaff, Pfaff, Gill & Ports, Ltd., 1 E. Wacker Drive, Chicago, IL 60601 (w) 312 828 9666 (c) 312 972 9666 [email protected] The firm actively practices in the Chicago area and in select counties in central 

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