Physician Legal Review & Commentary

Appeals court lowers award for pain and suffering in negligent nephrectomy case to $1 million

By Jonathan D. Rubin, Esq.
Kaufman, Borgeest & Ryan
New York City

Alyssa M. Panaro, Esq.
Kaufman Borgeest & Ryan
Valhalla, NY

Carol Gulinello, RN, MS, CPHRM
Vice President
Risk management & Professional Practice Evaluations
Lutheran Medical Center
Brooklyn, NY

News: A New York State appellate court ordered a reduction of damages after an Erie County jury awarded $1.75 million in past and future pain and suffering damages against a hospital and physicians for negligence and medical malpractice in performing a nephrectomy. In March 2005, a healthy 43-year-old collections agent underwent a donor nephrectomy. Preoperatively, the hospital conveyed that the nephrectomy would be performed within three hours with limited recovery time. However, the operation spanned nearly eight hours and resulted in significant postoperative discomfort and difficulty ambulating. Ultimately, the patient required an emergency spinal fusion surgery that included removal of a vertebra to relieve the postoperative symptoms. At trial, an Erie County jury found negligence on behalf of the hospital and surgeons and awarded $4.1 million in damages. On appeal, the New York State Appellate Division, Fourth Department, held that the pain and suffering damages were excessive and ordered a reduction of pain and suffering damages by $750,000. No appeals are pending.

Background: On March 23, 2005, a patient underwent a donor nephrectomy at a hospital whereby his right kidney was harvested and transplanted to his mother. Before the transplant, his mother was suffering from kidney failure and, without the transplant, would have required a lifetime of dialysis. Typically, this type of surgery is performed within two to three hours. However, the surgery took nearly eight hours to perform due to the alleged delay of one of the physicians performing the procedure. During this eight-hour span, the patient was positioned in a flexed spinal position, on his left side, and his head and lower body were angled downward to facilitate the removal and harvesting of his right kidney.

Upon waking postoperatively, the patient complained of pain down his left side and an inability to walk without limping. The patient suffered from a painful condition known as rhabdomyolosis, the breakdown of muscle fibers that leads to the release of muscle fiber contents [myoglobin] into the bloodstream. This condition can be potentially dangerous as research shows that it can lead to kidney damage. However, in this case, the rhabdomyolosis resulted in permanent muscle damage of his left flank.

The patient's symptoms worsened and on May 3, 2005, the patient underwent emergency spinal fusion surgery at C3-4 and C4-5 in which one whole vertebra and neighboring discs were removed to release pressure from the spinal cord.

The patient sued the physicians and the hospital that performed the transplant surgery. In his suit, the patient argued that his injuries resulted from the pressure of remaining in a surgically flexed position for an extended time. At trial, the patient testified that he has experienced excruciating, permanent pain in his back, neck and left side; antalgic gait due to a dropped foot from weakness; and an inability to resume leisure activities or home repair. Additionally, at trial, the patient alleged that he will likely necessitate additional surgical interventions to correct his injuries. Furthermore, the patient presented evidence that the physician performing the kidney transplantation was responsible for delaying the surgery for a substantial time. Moreover, the patient contended that the doctrine of res ipsa loquitor was applicable to account for the physicians' negligent performance of the nephrectomy and to account for the delay in performing the procedure. Res ipsa loquitor (Latin for "the thing speaks for itself") is a legal doctrine that presumes that an alleged wrongdoer is negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.

In response, the defendants' argued that the patient's injuries were attributable to an infarct of his congenitally narrowed spinal cord during a 5-minute episode of low blood pressure during the surgery. An infarct refers to a localized area of dead tissue (necrosis) resulting from obstruction of the blood supply to that part, especially by an embolus.

However, in October 2010, an Erie County jury found the defendant physicians and hospital's arguments to be non-compelling and awarded damages totaling $4.1 million, including, $2 million for future lost earnings, $500,000 for past pain and suffering, and $1.3 million for future pain and suffering. On appeal, the hospital and physicians successfully argued that the jury's awards of damages for future lost earnings and past and future pain were excessive. Accordingly, the Appellate Division, Fourth Department lowered the jury award to $1.1 million for future lost earnings, $250,000 for past pain and suffering, and $750,000 for future pain and suffering.

What this means to you: Unfortunately, the outcome of what initially was intended as an altruistic act on the part of the plaintiff ultimately changed the course of his life.

A surgery that would normally last approximately three hours took more than eight hours to perform. During that time the plaintiff was positioned in an unnaturally flexed position allegedly causing permanent damages to his neck and back.

During this procedure, the surgeon is operating in the lumbar area of the spinal cord and is responsible for the positioning of the patient to optimize access to the operative area. However, the anesthesiologist is responsible for positioning the patients head and neck to ensure proper alignment of the spine and maximize proper airway management. In surgical cases lasting many hours, much care is taken to avoid the injuries alleged in this case. Whether the positioning is for a surgery lasting one hour or 10 hours, the anesthesiologist maintains the position of the cervical area and airway. It is of note that the anesthesiologist's role in positioning the patient and maintaining vital signs was not mentioned in this claim, and this role appears not only to be to be the crux of the case, but the etiology of the plaintiff's longstanding injury.

The other equally important issue in this case is the delay of the surgeon arriving to perform the surgery, while the patient was waiting on the operating room table. Although not explained in the summary, the reader can assume that the patient was prepped and positioned for the surgery and the surgeon did not arrive in a timely fashion. This case occurred in 2005 when, in fact, The Joint Commission had issued its list of National Patient Safety Goals (NPSGs) one year earlier, in 2004. One of these goals, the Universal Protocol or "time out" procedure, was created to prevent wrong-site, wrong-procedure, and wrong-patient surgery. The intent of this goal is to ensure patient safety by requiring that all immediate members of the procedure team including the surgeon, anesthesia provider, circulating nurse, operating room technician, and other participants in the procedure be present for the verification of the patient's identity, type of procedure to be performed, verification that an informed consent exists for the procedure, and verification of the laterality of the surgery or procedure if required for the particular procedure. The time out is done even before the patient is positioned and draped. At that point, the "captain of the ship," in this case the surgeon, ensures that everyone is aware of the overall plan of care for the patient, and everyone agrees to begin. The surgeon and anesthesiologist also agree on the anatomical positioning of the patient to ensure a good outcome. Clearly, this time out did not occur in this case. Had the Universal Protocol standard, in the form of a time out, been performed, the surgeon would have been in the room and ready to operate. The members of the operating room staff that allowed this patient to arrive in the OR, prepped and positioned, without the surgeon on hand are equally responsible for deviation in the standard of care and the overall outcome of the patient. This breech would be considered a sentinel event reportable to The Joint Commission. Clearing a re-education and reinforcement of the NPSG regarding Universal Precaution accompanied by a concurrent observation of time-out procedures is recommended as a corrective action in this case.


Backus v. Kaleida Health, et al., 91 A.D.3d 1284 (App. Div. 4th Dept., 2012).