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Jeffrey Hesser Wins Not Guilty Verdict in Alleged Medical Negligence

May 1, 2016Related Practice Areas: Medical Liability
Jeffrey A. Hesser

In this case, the plaintiff’s decedent, a 71-year-old maintenance worker at a long-term health care facility was seen by his primary care physician on September 12, 2003 for follow-up care related to uncontrolled hypertension, chronic renal insufficiency, prostatism and hematuria. He had a 40-year history of smoking and coronary artery disease with a history of a prior myocardial infarction. The physician ordered blood and urine tests, and directed the decedent to a urologist for consultation.

Two days later, the decedent presented to the emergency room with complaints of bloody urine with frequency. He was treated and discharged in stable condition with a prescription for Cipro. On September 19, the urologist informed the decedent that he had a bladder tumor and surgery was to be scheduled for removal within ten days.

Upon completion of testing for pre-surgical clearance on plaintiff’s decedent, the physician recommended the patient undergo a treadmill thallium stress test and EKG prior to being cleared for surgery. By this time, the patient was off the course of Cipro and had complained of persistent diarrhea over the previous four days. The physician wrote a prescription for stool sample testing for Clostridium difficile colitis, in the event the diarrhea persisted. The surgery was postponed to allow the patient to complete stress testing.

A stress thallium test was completed and an office note from the physician confirmed a telephone conference whereby the stress test results were discussed, the patient remained “asymptomatic” and was medically stable for surgery.

On October 1, the urologist performed a cystoscopy and transurethral resection of a bladder tumor confirming that a high grade urothelial carcinoma with lymphatic invasion was present. The patient was discharged the next day after receiving IV-antibiotics (Ancef) and a prescription for Keflex (the oral form of Ancef).

Five days later the patient returned to the emergency room with severe abdominal pain and a history of two bouts of diarrhea that morning. CT scans of his pelvis and chest showed free air in the abdomen and pelvis, which was most likely due to a perforated bladder. He was admitted for a perforated bladder and was also diagnosed with an intestinal infection due to Clostridium difficile. During the patient’s hospitalization, he was treated for C. diff., renal failure and the bladder perforation. Despite being treated with antibiotics of Zosyn, vancomycin and Flagyl, the patient’s condition continued to deteriorate. He required ventilator support and underwent a colectomy before being pronounced dead on October 30 secondary to overwhelming sepsis.

The plaintiff alleged that the defendant primary care physician was at fault for medically clearing the patient for surgery, not ensuring a stool sample was tested (the hospital had no record of a sample ever being provided), not repeating blood tests or delaying the surgery until the patient’s symptoms of diarrhea had resolved. The plaintiff also alleged the physician was negligent for not ruling out C. diff. as the underlying source of infection from the initial course of Cipro prior to clearing the patient for surgery. Damages amounting to almost $1 million were requested.

The defense, represented by attorney Jeffrey A. Hesser of Cassiday Schade, argued that the defendant physician complied with the applicable standard of care and that it was more likely the subsequent course of antibiotics following bladder surgery (Ancef and then Keflex) as the most likely cause of the patient’s C. Diff.  

After a two week jury trial the jury returned a verdict of not guilty.  Post-trial Motions by plaintiff were dismissed.  The plaintiff’s appeal has subsequently been dismissed.

The above summary is specific to a particular case and is not intended as a projected outcome on any other matter.

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