Facts

Mariano Cruz Vera was 64 years of age when he was diagnosed with prostate cancer in June 2013 by his urologist, Dr. Garo Tertzakian. His prostate biopsy revealed the cancer to be a Gleason score 7 (3+4) with perineural invasion.

Dr. Tertzakian had two office visits with the patient and his family to discuss the diagnosis and the treatment options, which included active surveillance (not a good option here per defense), radical prostatectomy (no longer performed by the defendant physician), radiation therapy (not performed by the defendant physician) and cryoablation (performed exclusively by the defendant physician). The patient and his family testified that Dr. Tertzakian recommended cryoablation to them and steered them towards that choice.

The surgery was performed on Sept. 9, 2013 by Dr. Tertzakian at the La Veta Surgical Center. The patient testified that he awoke from the procedure in excruciating pain, and with profuse rectal bleeding, but was discharged to home.

Mr. Cruz Vera was seen in the office of Dr. Tertzakian on Sept. 17, 2013 for his post-operative visit, and his Foley catheter was removed on this date. He returned the following day reporting an inability to urinate and a new catheter was placed by a medical assistant. Medical assistants are not allowed to place catheters by law in California, and Judge Gastelum prohibited any witness from testifying that it was within the standard of care to allow a medical assistant to place a catheter.

The new catheter was removed by Dr. Tertzakian on September 26, 2013, and that physician left the country shortly thereafter for an extended period of time and was unavailable to the patient. Almost immediately after the new catheter was removed, the patient began experiencing what he believed to be diarrhea, and he sought treatment for that complaint with his primary care physician with Dr. Tertzakian out of the country. When the complaint was communicated to Dr. Tertzakian on October 23, 2013, he deferred to the primary care physician, who was already working up the cause of the persistent diarrhea.

On October 29, 2013, it became obvious that the patient was actually passing urine through his rectum, and that a fistula had formed as a result of the cryoablation, allowing urine to pass from the urethra to the rectum and fecal matter to pass from the rectum to the urethra. As a result of this communication, the right testicle became severely infected and had to be surgically removed. Mr. Cruz Vera underwent a series of failed surgeries to repair the fistula over the next 5 years, with a colostomy and a Foley catheter in place (repeatedly changed in the office of Dr. Tertzakian by medical assistants) until a definitive surgery at USC in 2018 resolved the fistula and reversed the colostomy.

Unfortunately, the patient was left with permanent erectile dysfunction and incontinence of urine.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that the standard of care required that this patient be offered active surveillance as the preferred option, and that he never should have undergone cryoablation since he remained sexually active and that surgical treatment virtually guaranteed erectile dysfunction and urinary incontinence. Plaintiff's urology expert, Dr. Richard Shapiro, testified that the complication of a fistula meant that something had gone wrong during the cryoablation to damage the tissue between the prostate gland and the rectum, allowing a fistula to form. Dr. Shapiro further opined that Dr. Tertzakian had breached the standard of care by failing to recognize the presence of a fistula, as evidenced by urine passing through the rectum. This delay in diagnosis allowed the infection to advance into the right testicle, thereby necessitating the loss of that right testicle. Similarly, Dr. Shapiro testified that the use of medical assistants to place catheters in the patient was against the law, and especially below the standard of care in a patient with a vulnerable urethra following cryoablation. Finally, it was argued by Dr. Shapiro that the attempts to repair the fistula once it was diagnosed were poorly conceived and doomed to failure, representing another breach of the standard of care.

DEFENDANT'S CONTENTIONS: The defense contended that the standard of care did not require a recommendation in favor of active surveillance, and Dr. Edward Uchio testified that the overwhelming majority of urologists would favor radical prostatectomy, radiation therapy or cryoablation over active surveillance in a patient with a Gleason score of 7 (3+4). Formation of a fistula is a known potential complication of this surgery, even when performed well, and there was no evidence that Dr. Tertzakian performed the procedure in a manner that was below the standard of care.

The defense was forced to concede that it was below the standard of care to allow medical assistants to place catheters, but argued that there was no compelling evidence that any of the catheter placements were performed poorly, or were the actual cause of any injury to the patient. Dr. Uchio explained that diarrhea is a very common post-operative complaint, especially given the antibiotics used, while a fistula is a very rare complication. Accordingly, the standard of care did not require Dr. Tertzakian to suspect the presence of a fistula until the patient was patently passing urine through his rectum and fecal matter through his penis, by which time it was too late to save the right testicle.

Finally, Dr. Uchio testified that the subsequent repair surgeries were well-intentioned and designed to attempt to resolve the patient's complaints short of the definitive surgery ultimately performed at USC.

Insurer

Cooperative of American Physicians

Damages

$630,328 ($173,872 in past loss of earnings; $ 99,656 in future loss of earnings, present value; $106,800 in future care needs, present value; $250,000 in non-economic damages per statute

Injuries

Plaintiff was rendered incontinent of urine, with erectile dysfunction, as a result of his treatment and complications, although cured of his prostate cancer. He spent five years with a Foley catheter and a colostomy bag before definitive surgery in 2018 reversed the need for those life-altering inconveniences. He was never able to return to work at his job as a custodian at Wal-Mart, costing him some 11 years of earnings, and a life care plan outlined his future care needs over the remainder of his life expectancy.

Result

Defense verdict for the defendant on the issue of whether the negligence of the defendant caused any injury to the patient by a 9-3 vote; the jury found that the defendant did breach the standard of care by a 10-2 vote (likely due to the changing of catheters by medical assistants), but that it did not cause injury to the patient.

Deliberation

six hours

Poll

9-3 (defense on the issue of causation)

Length

11 days