News: Two surgeons advised a patient that his only treatment options for a bladder issue were surgery or the permanent implementation of a catheter. The surgeons did not advise the patient of other non-invasive treatment options, including a transurethral microwave treatment or use of different medications. The patient chose surgery, which led to complications, another emergency surgery, and ultimately the patient’s death a year later.

The patient’s estate filed a wrongful lawsuit death arising from negligent medical care, and was awarded $870,000 in damages, including $300,000 in punitive damages. The Supreme Court of Missouri held that while punitive damages are rare for cases alleging mere negligence (as opposed to intentional wrongdoing), they were appropriate here because this was an example of an extraordinary case in which the doctors’ actions were so grossly negligent that they were tantamount to intentional wrongdoing.

Background: In October 2012, a urological surgeon was treating the patient for an enlarged prostate. The surgeon informed the patient his only treatment options for a bladder issue were surgery or the permanent implementation of a catheter. The surgeon performed the transurethral resection of the prostate (TURP) and a transurethral incision of the bladder neck (TUIBN) to allow easier placement of a catheter.

Shortly after surgery, the patient complained of abdominal pain, renal failure, and difficulty breathing. The surgeon ordered imaging studies, which showed free air in the patient’s abdomen and retroperitoneal area. The surgeon concluded it was caused by a perforation of the gastrointestinal tract, and requested a surgical consultation.

A general surgeon performed an exploratory laparotomy to examine the patient’s GI tract. After identifying “fatty tissue” in the sigmoid colon but no perforation, misplaced catheter, or any irrigation fluid in the patient’s abdomen, the general surgeon concluded a ruptured diverticulum had caused the free air but sealed before the laparotomy. Afterward, the patient developed sepsis and respiratory and kidney complications.

Two weeks after the prostate surgery, medical center nurses removed and replaced the original catheter. Urologists subsequently removed and replaced the second catheter, drained his bladder, and drained fluid that had collected in his abdomen. The patient improved and was discharged to a smaller hospital, where the catheter was removed; however, while there, he suffered a stroke. During the next 10 months, he was transferred between hospitals and nursing facilities and ultimately into palliative care. The patient died in October 2013, approximately one year after the prostate surgery.

The patient’s estate filed a wrongful death lawsuit against the medical facility, alleging the patient’s death was caused by the surgeon’s misplacement of the catheter and both doctors’ failure to discover the misplacement. As for the surgeon, two experts for the plaintiff testified he misplaced the catheter outside the patient’s bladder during the prostate surgery, failed to recognize his error or discover it during due care, failed to properly identify the source of the free air when the general surgeon did not find a perforated viscous during the laparotomy, failed to properly investigate the patient’s decline in health caused by his other errors, improperly reported the patient did not have a urine leak without conducting testing, and should not have performed the TUIBN with the TURP.

The patient’s estate also presented expert evidence alleging the general surgeon failed to obtain additional diagnostic testing before surgery and failed to locate (or conduct additional testing to find) the source of the free air. On the other hand, the medical center presented evidence indicating both prostate procedures were appropriate and met the standard of care. The surgeon properly placed the catheter within the patient’s bladder during the surgery, and both doctors were justified in performing emergent exploratory surgery without additional presurgical testing. The medical center concluded the catheter must have been misplaced when the nurses placed a new catheter more than two weeks after the prostate surgery, but the misplaced catheter did not cause or contribute to the patient’s death by stroke-related complications. The jury found in the estate’s favor, awarding nearly $1 million: $270,000 in damages, $300,000 in noneconomic damages, and $300,000 in punitive damages.

The Supreme Court of Missouri affirmed the $870,000 verdict, including punitive damages, noting the plaintiff provided sufficient evidence the healthcare providers exhibited a reckless indifference or conscious disregard of the patient’s well-being. The court reasoned the issue of punitive damages was appropriate for the jury because the family had presented substantial evidence showing the surgeon acted with “a complete indifference to or in conscious disregard for the rights or safety of others” when she “incorrectly informed” the patient that “the only two treatment options were surgery or to self-catheterize for the remainder of his life” when the surgeon “knew there were other non-invasive treatment options, including a transurethral microwave treatment or use of different medications.” Because the surgeon knew or should have known these treatments could have addressed the patient’s concerns, but chose not to inform the patient of them, she could be liable for punitive damages. The court also found substantial evidence supported the jury’s finding because the surgeons knew the patient suffered from severe pain, kidney failure, and possible sepsis, but did not perform any tests to determine whether the bladder was perforated or the catheter was outside the bladder. Even when two other doctors expressed concerns, the surgeons failed to acknowledge or otherwise take the necessary steps to address the numerous complications.

In a concurring opinion, another judge noted punitive damages “are rarely recoverable” in negligence suits, and may be appropriate only in “truly extraordinary cases.” A different judge dissented, arguing damages should only be awarded in cases of intentional wrongdoing because even gross negligence is not “tantamount to intentional wrongdoing.” This disagreement highlights how these issues are not always cut and dry, and often are state-specific. Be sure to consult with qualified legal counsel in local jurisdictions.

What this means to you: This case demonstrates the need to fully inform patients of their treatment options — especially in non-emergency situations — and to carefully monitor patients during the relevant times, particularly during and after surgery, and to investigate abnormal conditions appearing after the surgery. A well-considered and documented informed consent can be as important to the patient’s safety from harm — and the physician’s protection from litigation — as making the correct diagnoses, prescribing the appropriate medications, or skillfully performing the correct procedures. Yet, many physicians find it difficult, time-consuming, and, quite remarkably, a task that can be delegated to non-physician healthcare providers. Providing informed consent to the patient timely enough so he or she can review it with family, ask questions, perform their own research, or even find a second opinion is ideal, but seldom practice. However, providing informed consent in a pre-op setting moments before a patient is anesthetized is a high-risk practice. Physicians and surgeons should correct this behavior and give patients the best chance to make an informed decision about what they want done to their bodies, what they value as quality of life, and what they want their end-of-life choices to look like.

Generally, medical providers only are subject to punitive awards for damages caused by their intentional conduct, but not for the results of negligent, or even grossly negligent, medical care. However, in limited cases such as this, and in some jurisdictions, medical providers whose negligence rises to the level of “complete indifference to or in conscious disregard for the rights or safety of others” may properly be subjected to punitive damages. The goal of punitive damages is to punish the wrongdoer and deter others from similar actions; levying punitive damages in cases involving intentional wrongdoing or conduct so egregious that it is tantamount to such conduct furthers that goal.

While this was a 5-2 decision, and at least one of the dissenting judges argued punitive damages are proper only in cases alleging intentional conduct, this case leans toward a shift to punitive damages in cases of gross negligence. Specifically, punitive damages may be available to an aggrieved plaintiff where a patient was incorrectly advised of surgical treatments to a mild prostate issue but not non-surgical treatments, and those surgical treatments led to complications the medical providers failed to properly investigate or prevent from causing further harm to the patient.

More generally, the most determinative factor in whether punitive damages should be available to a jury deciding a wrongful death action arising from alleged negligence is whether the plaintiff “made a submissible case” for aggravated circumstances damages by properly introducing evidence of “complete indifference to or conscious disregard” for the patient’s safety. Where such evidence has been submitted to a jury, the courts will not find error in the jury’s award of punitive damages to the plaintiff.


  • Decided March 2, 2021, in the Supreme Court of Missouri, Case Number SC 98327 (2021 WL 822828).