Question About six months ago my son underwent bilat hydrocele repair. During his operation the surgeon cut a artery that supplied blood supply to his testicle. We recently brought his case to a medical malpractice firm and at first they seemed very excited about his case. However, after they had a medical expert review his case they called us and told us that the expert did not believe the surgeon breached the standard of care and that this was simply a "unfortunate medical outcome" The law firm told us that they would continue this case but if we wanted a second opinion we would need to pay out of pocket for it. My wife and I are both in the medical field and work in major hospitals and understand that even the most perfectly performed surgery sometimes have unfavorable results. However, we both strongly believe that this is not the case here. Here are our concerns:
After the artery was cut the surgeon gained control of the artery and then called in his senior surgeon and consulted on wether or not they should re-attach the artery. They deemed it un-needed as they believed that the testicle was still viable through the vas deferens. Why were my wife and I not given that choice? He obviously had time to call in his senior and discuss it with him.
2. Our son spent the night and was discharged home the next day on discharge orders of frequent diaper changes, bacitracin over his scrotum incision, and pain meds as needed. Shortly after getting home a stitch fell out leaving a small opening in his scrotum. We called his surgeon who told us not to worry because he had sutures under the skin. Several days later his scrotum became infected. He needed to be admitted to the hospital for 4 days on IV anti-biotics. His second discharge orders included oral anti-biotics as well as a diapering technique called double diapering. This is done to keep feces away from the scrotum. Why wasn't this precaution taken the first time? The Doctor according to my sons medical chart admits that an infection would compromise the viability of his testicle. If this is the case, and if he thought the testicle was still viable prior to the infection then I am left to believe that the infection caused the loss and that this infection was due from a lack of action by his surgeon as well as not taking appropriate measures to avoid an infection in the first place.
Again I am left to wonder why the precautions they took after his infection were not taken before his infection to prevent it?
As far as his my sons lawyers go. They told us that they sent his medical record to a Doctor out of state for review. He came back with the opinion I mentioned earlier. I asked our lawyers if they posed any questions to him concerning the above issues. They told us that they do not do that. They said they give them the report and look to them to establish a case for them. They said they can't make a case for the expert. My issue with this is, and according to our lawyers, his main concern is with the operative report and not so much with the case as a whole. If our lawyers are not going to ask him these questions then how can I expect him to find them on their own? It is my opinion that unless directed to look at specific facts the expert is simply going to focus just on the operative report.
Should my lawyers be asking these question? Should we find a new lawyer? Or should we not be trying to push a lawsuit that is not there?
Answer Yes, you do have a case.
Your recital is thorough. Too bad your lawyers were not as thorough. You are correct in assuming that the lawyers should have asked the 'expert' questions about not only the operative report, but after care. The vas deferens will allow adequate blood supply to the testes? I am delighted to think that is possible, but you and I know it is not. The vas deferens is a tube that carries sperm and some fluids out of the genitals during sexual intercourse. It has little to do with an infant's blood supply. You say the surgeon called his senior surgeon. Was this guy a resident? How many of these surgeries had he done unsupervised before this one? Did his 'senior' surgeon know what had happened and why? Did the senior ever watch this guy do this kind of surgery before yours?
Then after your son is sent home the scrotum opens and an infection follows. Your point about preventing infection is well taken, but you will have a lot of trouble getting anyone to support this during a malpractice trial. Ordinarily infection is not expected. It is usually the result of some one's carelessness. Lawyers are fearful of attacking doctors in infection cases unless they find some sign of negligence in the reports. However, if in the records the doctor noted that the testes was damaged, and probably no longer 'viable', then a lawyer should be happy to attack the doctor.
I have prepared cases for a lot of lawyers. Yours sounds as if they sent their expert only the operative report to save money. That expert probably answered their question blind because he did not know of those things in the record that would have caused any expert to wince. You don't seem to know if this expert is a pediatric surgeon. If he is not, then pfui on anything he says.
Get started now looking for a lawyer. Get an old guy with money and trial experience. You can find these guys at the court house. Ask for the index to civil cases. A clerk may help you get started. Go through the index and pull out any case that sounds like yours. You will find very few, or maybe none, so get any that sound like genital surgery regardless of age. Then talk to the plaintiff's lawyers. Start now.
