Facts

August B. Privratsky, Jr. was born on July 20, 1967 and is currently 55 years of age. He was diagnosed as a Type 1 diabetic in 1991 at the age of 24 years and managed his blood sugars on a daily basis with the assistance of an insulin pump.

On May 31, 2019, he presented in the emergency room at St. Joseph Hospital in Orange, California with right flank pain for the past week. A CT scan of the abdomen and pelvis revealed a 6 mm kidney stone obstructing the right ureter, as well as significant urinary retention of the bladder and perinephric stranding suggestive of pyelonephritis. A urinalysis was positive for a urinary tract infection and a urine culture was ordered. In the interim, the patient was started on 1 gm of IV Ceftriaxone daily and admitted to the hospital under the service of Chest and Critical Care Consultants. A urology consult was requested from Garo M. Tertzakian, M.D.

Dr. Tertzakian evaluated the patient on June 1, 2019 and recommended that a stent be placed between the bladder and the right kidney, thereby allowing the urine to drain into the bladder around the kidney stone in the right ureter. A second procedure was contemplated on an outpatient basis several days later to break up the kidney stone (a lithotripsy). The stent was placed by Dr. Tertzakian on June 1, 2019 without complication, and that physician did not round on the patient again during that hospital admission.

By the morning of June 2, 2019, the patient was unable to urinate and a Foley catheter was placed by the hospital nursing staff, with great difficulty and causing significant pain. Jane Brugman, N.P. became involved in the patient's care on June 2 and 3, 2019 on behalf of Chest and Critical Care Consultants. The patient asked to remain in the hospital overnight to see if the Foley catheter could be removed before being sent home.

On the morning of June 3, 2019, the patient was still unable to urinate and spiked blood sugars over 300. Despite those developments, the patient was discharged to home by Jane Brugman, N.P. on 6 more days of oral antibiotics (Cefuroxime) and with instructions to resume his insulin pump. Later that same day, the urine cultures revealed two organisms: Gardnerella Vaginalis and mixed urogenital flora, but no sensitivity testing was undertaken to assist in the selection of targeted antibiotics. Indeed, it was not clear that any healthcare provider ever reviewed the culture results.

Dr. Tertzakian saw the patient in the office on December 5, 2019 and scheduled him for the planned lithotripsy on June 11, 2019 at the La Veta Surgical Center. No urinalysis or urine culture was ordered at this time to confirm that the previous infection had cleared and to confirm that no new infection had started. (The presence of an indwelling stent and a Foley catheter increased the risk of a new infection developing.)

In addition, on June 11, 2019, no pre-operative antibiotics were administered (despite surgery center guidelines arguably mandating those antibiotics). The Foley catheter was removed, as well as the existing ureteral stent, before the lithotripsy was successfully performed. A new ureteral stent was then placed before the patient was discharged to home. No new Foley catheter was placed on this date and the patient was discharged despite an inability to urinate following the procedure.

Mr. Privratsky developed agonizing pain at home following the lithotripsy on June 11, 2019, and then proceeded to the emergency room at Orange Coast Memorial Medical Center. A CT scan in that facility revealed that the ureteral stent had migrated, causing another ureteral obstruction, and a urine culture revealed a urinary tract infection, pyelonephritis and severe sepsis from enterococcus. Within days thereafter, the patient went into diabetic ketoacidosis and had to be moved to the ICU before the ureteral stent was removed surgically.

Over the coming months, Mr. Privratsky developed severe urinary complaints, including the need for self-catheterization, and was forced to have a suprapubic catheter placed in March, 2020. As a result of this procedure, he lost the ability to work in his normal occupation as a physical therapist and suffered numerous hospital admissions secondary to infections, elevated blood sugars and suicidal ideation.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that it was below the standard of care for Jane Brugman, N.P. to have discharged him from St. Joseph Hospital following his painful catheterization with a persistent inability to urinate, elevated blood sugars and without the results of the urine culture. Moreover, it was alleged that Ms. Brugman negligently failed to communicate the recent developments from the hospitalization to Dr. Tertzakian, including the urine culture results that eventually became available.

Plaintiff further contended that it was below the standard of care for Dr. Tertzakian to have performed the lithotripsy of June 11, 2019 without first confirming through a urinalysis and urine culture that the original infection had cleared and that no new infection had arisen. Moreover, it was argued that the standard of care required pre-operative antibiotics on June 11, 2019, as arguably mandated by surgery center guidelines, and that the stent would not have migrated by the following day if it had been properly positioned by Dr. Tertzakian on June 11, 2019. Finally, plaintiff's experts argued that this patient should not have been discharged from the surgery center on June 11, 2019 without a Foley catheter and without the ability to urinate.

DEFENDANT'S CONTENTIONS: The defense contended that the care rendered to this patient by both Nurse Practitioner Brugman and Dr. Tertzakian complied with the standard of care at all times. The patient presented in the hospital on May 31, 2019 with a CT scan demonstrating urinary retention, which meant that his bladder was already functioning abnormally secondary to his longstanding Type 1 diabetes. Dr. Tertzakian appropriately addressed the stone that was obstructing the right ureter by placing a stent on June 1, 2019 and then instructed the patient to see him in the office once he was discharged from the hospital. Nurse Practitioner Brugman appropriately managed the patient's condition over the ensuing 2 days, discharging him to home with oral antibiotics, a Foley catheter in place, and instructions to resume control of his blood sugars with his insulin pump. Although the urine culture results were not known at the time of discharge, and may never have been reviewed, the patient was discharged on antibiotics that were appropriate and successfully treated the original infection.

The defense also argued that Dr. Tertzakian was not required by the standard of care to order a urinalysis or urine culture prior to the lithotripsy because the patient was on oral antibiotics until June 9, 2019, had a Foley catheter in place, and was asymptomatic. Pre-operative antibiotics were not mandated either in this specific setting, but if they had been ordered, would not have been sensitive to enterococcus and would not have altered the patient's course. Migration of the stent is a known risk in the best of hands, and any migration of the stent would not indicate that Dr. Tertzakian had been negligent. Indeed, a careful review of the CT scan from Orange Coast Memorial Medical Center indicated that the stent had not migrated significantly, if at all.

Finally, discharging the patient from the surgery center without a Foley catheter and without a demonstrated ability to urinate was not below the standard of care since Dr. Tertzakian provided the patient with his telephone number to call if he had any persistent inability to urinate. No telephone call was placed to Dr. Tertzakian on the evening of June 11, 2019.

The defense also noted that the enterococcal infection cleared by June 15, 2019, before the patient developed diabetic ketoacidosis, thereby eliminating the possibility that the patient's sepsis was the cause of the diabetic ketoacidosis. The patient's subsequent urinary complaints were argued to be the result of his diabetic neurogenic bladder, which had been developing ad progressing prior to the treatment at issue in this case.

Damages

The present cash value of the future life care plan presented by the plaintiff exceeded $2,600,000, with past and future loss of earnings adding another $1,000,000 in potential special damages.

Injuries

Plaintiff argued that the patient would require significant medical services in the future, primarily relating to complications from the suprapubic catheter and the recurrent urinary tract infections, including annual hospitalizations over the ensuing life expectancy. The total future medical expenses were expected to approximate $2,600,000 present value. In addition, the plaintiff was likely precluded by his complications from returning to work over the remainder of his 10 year work life expectancy, resulting in a past wage loss of some $250,000 and future wage loss with a present value of $780,000. In closing arguments, plaintiff also requested that the jury return an award of $400,000 in non-economic damages.

Result

Defense verdict for each defendant on the initial issue of whether the standard of care was met in the care and treatment of this patient. The vote was 10-2 in favor of defendant, Dr. Tertzakian, and 11-1 on behalf of defendants, Jane Brugman, N.P. Chest and Critical Care Consultants.

Deliberation

two hours

Poll

10-2 (in favor of defendant, Dr. Tertzakian); 11-1 (on behalf of defendants, Jane Brugman, on negligence)

Length

13 days