Dr. T, age 41 years, was a urologist in a small Midwestern community who had opened his solo practice two years earlier. With no shortage of patients, he felt positive about his professional prospects and his future. His family was young — the twin boys were aged 9 years and in fourth grade — and Dr. T and his wife were enjoying the best part of life. He could never have imagined that an encounter with one patient would change all that.

It all started very routinely, when a new patient came in for a consult. Mr. K was a terrific-looking 53-year-old man who was referred by his general practitioner. Mr. K was the epitome of fitness; he was trim and appeared to be the picture of health. Mr. K, too, had a relatively young family — a wife and four teenage daughters. As a new patient, Mr. K was asked to fill out standard medical-information forms and to provide his insurance information upfront. 

Once in the examination room, Dr. T introduced himself, skimmed the documents and asked his new patient what brought him here. Mr. K told the urologist that he was itchy and uncomfortable in his private area. In the course of evaluation, Dr. T surveyed a penile lesion that the patient said he’d had for months, but just would not heal. When asked, Mr. K reported having periodic irritations and occasional lesions in his genital area. Dr. T recommended circumcision, and scheduled Mr. K for the procedure the following week. 

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The surgery was successfully performed in 
Dr. T’s office under local anesthesia. As the procedure was routine, Dr. T anticipated a positive outcome and he told Mr. K that the lesion would clear up gradually, and in the future he would be free of the wounds. 

However, serious complications soon developed. Over the next three months, Mr. K returned to Dr. T’s office on several occasions complaining of a host of issues: general pain and pain upon urination, an unusual protrusion on the shaft, other urination difficulties and a reported lack of sensation. The patient was distraught. 

With Dr. T providing no definitive answers, Mr. K abruptly switched physicians.

Mr. K’s new urologist, Dr. G, reviewed his history and listened to his complaints. Dr. G then immediately ordered a urinalysis. The workup revealed that Mr. K was diabetic and that his insulin levels were not in check. When Dr. G asked Mr. K if he was aware that he had diabetes, the patient answered, “Yes.” 

“Do you take any medication to manage your diabetes?” Dr. G asked.

“No, Doctor. I just try, for the most part, to eat healthy and exercise,” Mr. K replied.

“Did you tell your previous doctor that you were diabetic?” the physician queried. 

“He never asked me,” Mr. K said.

“And did Dr. T do a urinalysis before your circumcision?” Dr. G followed up.

“No, he didn’t,” replied Mr. K. “Should he have?” 

Dr. G then explained that uncontrolled diabetes was probably responsible for his poor recovery from surgery. Diabetic patients, Dr. G informed, typically experience impaired wound healing and are at increased risk for infection. This probably explains the urinary tract infection that ensued post-procedure and was the cause of the genital discomfort. 

Armed with this information, Mr. K sought the advice of counsel. He hired a crackerjack attorney who filed suit against Dr. T, alleging negligence for failing to order a urinalysis prior to surgery. In addition, Dr. T was brought up on charges that he failed to properly treat the patient postoperatively. 

At trial, an expert witness for the plaintiff testified that, in his opinion, Dr. T should have performed a urinalysis prior to performing circumcision. “Uncontrolled diabetes in surgical patients is fraught with many, many complications — including fungal infections,” the expert stated.

In failing to check for diabetes, a common ailment in this country, 
Dr. T did not give the appropriate standard of care to 
Mr. K. Doing so might have averted many of Mr. K’s postoperative difficulties.

After the expert testimony, Mr. K was called to the stand to relate the pain and discomfort he had suffered. He related, candidly, that he and his wife were still unable to engage in marital relations, and that he was experiencing urinary difficulties to this day. 

Mr. K’s attorney then asked him about the medical form he filled out at first visit to Dr. T’s office. 

“Did you put down that you have diabetes when you filled out the form?” the attorney asked.

“No, I did not,” stated Mr. K.

“May I ask why?” counsel continued.

“Because nowhere on the form did it ask if I had diabetes,” said Mr. K. “I never saw the word ‘diabetes’ on there.” 

Dr. T’s attorney hit this hard during cross-examination. After grilling Mr. K about the fact that he had diabetes and chose to manage it conservatively, the lawyer broached the question of why Mr. K did not explicitly state that 
he was diabetic when asked to do so on the medical history form. 

“The information form you received — and filled out — in Dr. T’s office that morning asked explicitly if you had any medical conditions, didn’t it?” the lawyer asked.

“Yes,” Mr. K said sheepishly.

“And it asked you to write down what, if any, those medical conditions were. There was — and correct me if I’m wrong — a set of blank lines underneath the question for writing in responses, wasn’t there?” the defense continued.

“I guess so,” Mr. K admitted. 

“Did you believe that diabetes didn’t fall in that category — that it wasn’t a medical condition?”

“I guess I expected it would ask specifically about things like that,” Mr. K added. 

After a set of impassioned closing arguments by both attorneys, the jury retired to deliberate. While the plaintiff’s attorney emphasized the pain and discomfort his client suffered and was still suffering, the defense pointed to Mr. K’s failure to disclose a vital piece of information pre-surgery.

A mere six hours later the jury returned. They found 
Dr. T to be 54% at fault for Mr. K’s injuries, and Mr. K 46% responsible for his situation. Damages were set at $2 million, but Mr. K received only $1.08 million.

Legal background

The jury was instructed to weigh all aspects of the evidence before coming to a verdict. Since it was clear that 
the actions of both parties contributed to Mr. K’s postsurgical complications, the verdict was split to reflect “comparative negligence” between the two parties.

Comparative negligence is a rule of law used in applicable cases to determine responsibility and damages based on the degree of negligence of every party directly involved. In a situation where each party has some degree of negligence, the responsibility to the other person(s) is reduced by the others’ degree of negligence. In this case, Mr. K was found to be 46% responsible for neglecting to inform Dr. T that he was, in fact, diabetic. His total award is therefore reduced by 46%. Dr. T was found to be 54% comparatively negligent for failing to ascertain (prior to surgery) that Mr. K had diabetes. Thus, Dr. T was responsible for paying 54% of the $2 million award. 

Not all states utilize the principle of comparative negligence — and those that do vary in their interpretation of the precept. “Pure” comparative negligence, which was employed in this case, works from the principle that no matter what percentage of fault is attributed to the plaintiff, he or she will collect the remainder of the reward. 

“Modified” or “limited” comparative negligence allows for the plaintiff to collect a portion of the reward only if he or she is responsible for less than a certain percent of the blame. This percentage varies from state to state. 

Protecting yourself

The fact that the jury found Mr. K to be 46% at fault indicates that jurors expect patients to know that they should alert their clinicians about serious health conditions, such as diabetes. It is understandable that Mr. K was angry and upset by the surgical complications, and that he would want to seek 
monetary recompense, but clearly he was at fault here too. 

Dr. T’s mistake, besides not having a more detailed intake form, was his failure to take a thorough history. He should have spent more time discussing Mr. K’s medical history. Asking more questions up front might have prompted Mr. K to divulge that he had been diagnosed with diabetes.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.