The Balmene Case
This case involves the negligent placement of sutures during a hysterectomy, and the subsequent 5-year delay in diagnosing and treating the obstruction in the right ureter caused by the sutures, which ultimately led to the loss of the patient’s right kidney, ovary, and fallopian tube. We brought suit against the patient’s Gynecologist, PCP, Radiologist, and Hospital where the surgery occurred.
Ureters: Tubes made of smooth muscle fibers that propel urine from the kidneys to the bladder
Hydroureter: A dilation or distension of the ureter caused by a compression or obstruction.
Hydronephrosis: The swelling of a kidney due to a build-up of urine that occurs when urine cannot drain from the kidney to the bladder due to a blockage or obstruction. The main symptoms are pain, either in the side and back, abdomen, or groin/pelvis, urinary tract infections, pain during urination, other problems with urination (increased urge, blood in urine, etc.), an achy body, swelling in the extremities, pressure like sensations, hypertension, etc. Pain that may increase and decrease in waves is often due to problems in the renal ureters. These symptoms depend on the cause and severity of urinary blockage.
- Treatment for hydronephrosis can be fairly simple if the condition is diagnosed early and can even be treated without surgery. However, if left undiagnosed or untreated, severe hydronephrosis can damage the kidney and lead to kidney failure.
- An ultrasound is typically used to confirm a diagnosis. Other imaging studies, such as an intravenous urogram (IVU), CT or MRI, are also important investigations in determining the presence and/or cause of hydronephrosis.
- The most common cause for this blockage is a kidney stone; however, hydronephrosis and hydroureters and also well known to occur following a hysterectomy because an injury and/or obstruction to the ureter is known to happen (both from negligent and non-negligent causes). Therefore, hydronephrosis and hydroureters should be on the top of a physician’s differential diagnosis following a patient’s hysterectomy.
- Hydronephrosis and hydroureter are common clinical conditions encountered not only by urologists and nephrologists, but also by emergency department physicians, primary care physicians, and gynecologists.
Our client was Tracy Balmene who was 45 years old when we represented. After graduating from high school in Armstrong County, she went on to earn an RN degree and Master’s degree, and was employed as the Director of Clinical Research at a Sleep, Allergy, and Lung Institute. She was a divorced mother of two girls, ages 20 and 22.
Tracy began treating with the Defendant Gynecologist 15 years before the surgery (for her first pregnancy). She also began treating with the Defendant PCP about 12 years prior to initial negligence.
A. The initial negligence of Dr. Gynecologist during surgery. At age 39, due to chronic pelvic pain and endometriosis, Dr. Gynecologist recommended that Tracy undergo a hysterectomy which he performed on July 17. During surgery, Dr. Gynecologist negligently placed permanent sutures near to or around the right ureter causing an obstruction.
Since it is well known that a ureteral injury can occur during a hysterectomy (both from negligent and non-negligent manners), the standard of care required the surgeon to ensure that a ureteral injury did not occur prior to completion of the surgery (so that it can repaired before it causes any harm) ; however, in addition to his negligent placement, Dr. Gynecologist negligently failed to ensure that the ureters were not injured, kinked, or obstructed prior to finishing surgery. Dr. Gynecologist also negligently failed to confirm urethal flow and failed to trace the ureters along their entire course.
Notably, as discussed in more detail below, these sutures were later identified by subsequent physicians as the cause of Tracy’s harm.
A. The ongoing negligence of Dr. Gynecologist and Dr. PCP for 5 years following surgery.
Every doctor agrees that if a patient has abnormal signs or symptoms of any kind, every doctor must perform a “differential diagnosis”. A differential diagnosis is essentially a virtual list of potential causes for the signs and symptoms a patient is experiencing. Then a doctor places the most dangerous cause at the top of the list, and then goes through the process of ruling each cause out. For example, for a patient who has chest pain, shortness of breath, and pain radiating down their arm, a heart attack would be on top of the differential diagnosis list, and the doctor would then take steps to rule out a heart attack. Once a heart attack is ruled out, the doctor would think of the next most dangerous cause and take steps to rule that out, and so on. A doctor who does not perform a differential diagnosis is playing Russian roulette with their patient.
In this case, Dr. Gynecologist and Dr. PCP never did a full differential diagnosis on their patient and never ruled out a kidney/urologic cause of Tracy’s symptoms. In fact, as discussed above, the cause that went undiagnosed and led to Tracy losing several organs - a hydroureter and hydronephrosis - are known complications from the exact type of surgery that their patient had days before their patient began experiencing the host of classic kidney/urologic injury symptoms. As a result, the patient experienced 5 years of misery and ultimately, lost her right kidney, right ovary, and right fallopian tube.
Indeed, two days after Tracy’s discharge from the hysterectomy surgery, she returned to the hospital with heaviness/tightness in her chest, difficulty expanding her lungs, shortness of breath on exertion, abdominal bloating, abdominal pain, chest pain, a 6-8 pound weight gain, pelvic discomfort, and inability to lay flat due to pain. She was admitted through the emergency room under Dr. PCP’s care. Dr. PCP testified that these are abnormal complaints following a hysterectomy and that he was concerned about them; however, Dr. PCP simply diagnosed Tracy with anemia and abdominal distention from surgery, ordered a blood transfusion, and discharged his patient to home. Notably, Dr. Gynecologist testified that Dr. PCP never tried to contract him about his surgical patient returning to the hospital two days after discharge with numerous abnormal complaints; conversely, Dr. PCP testified that he collaborated with Dr. Gynecologist on the patient’s care.
For the ensuing 5 years, Tracy was seen and treated by Dr. Gynecologist and Dr. PCP with documented complaints of numerous urinary tract infections, hypertension that began right after surgery, blood in her urine, chest pain, pelvic pain, shortness of breath, right lower quadrant pain, a tight abdomen, extremely swollen feet, hands and ankles, pain while urinating, stabbing pain in lower abdomen, extreme fatigue, achy body, bloating, night sweats, dull and aching pain in her low back, severe lower abdominal pain and pressure, and vaginal pressure that worsened when standing, etc. These symptoms were new, all began right after the hysterectomy, and are symptoms of a potential kidney/urologic problem.
Yet, not one time did Dr. Gynecologist or Dr. PCP have a kidney/urologic cause on their differential diagnosis, not one time did they order any imaging studies to determine if there was a kidney/urologic cause, not one time did they make a referral to a urologist or nephrologist, not one time did they try to communicate with each other about their patient, etc. Tracy would even periodically ask Dr. Gynecologist and Dr. PCP if she had a kidney problem and if she should see a urologist or nephrologist, and each time she was told “no”. In fact, she recalls feeling like the doctors thought she was a hypochondriac which is interesting because both Dr. Gynecologist and Dr. PCP essentially testified that they did think Tracy was a hypochondriac (she “was anxious about her health”, she “would not let [a complaint of pain] go for a day or two”, “she had a lot of somatic complaints”, etc.).
A. The negligence of Dr. Radiologist. In the middle of this 5-year period, suspecting that Tracy had a gallbladder problem after she complained of right upper quadrant pain, Dr. Gynecologist ordered a right upper quadrant ultrasound. It was read by Defendant Dr. Radiologist. Dr. Radiologist’s impression was: (1) Multiple cystic structures in right kidney, probably simple cysts; and (2) otherwise normal exam. Interestingly enough, Dr. Radiologist noted in the body of his report “Multiple cystic structures are seen in the right kidney. These are all circular in configuration and represent simple cysts rather than hydronephrosis. “
First, it is undisputed that the entire right kidney could not be visualized on these ultrasound images. This was important because: (a) Dr. Radiologist admitted that he needed to visualize the entire right kidney to make a proper diagnosis; and (b) it was his job to order further imaging to visualize the entire right kidney which he did not. Second, it was undisputed that Dr. Radiologist misread the imaging that was available; even the defense experts agree that “severe hydronephrosis” was still “very clear” on the available imaging.
A. After 5 years, new doctors treated Tracy and immediately recognized the problem. After 5 years, Tracy’s health insurance changed and she had to treat with a different gynecologist. Due to Tracy’s right sided pain and other complaints, this gynecologist performed laparoscopic surgery where he performed a lysis of adhesions and removed Tracy’s right ovary and right fallopian tube (the thought was adhesions and/or the right ovary/fallopian tube was causing the pain). During surgery, this gynecologist saw that Tracy’s right ureter was obstructed and enlarged from misplaced permanent sutures from the hysterectomy and that this was causing hydronephrosis of the kidney. He documented, “My thought process is that this ureter has been obstructed due to the placement of the sutures from her previous surgery. ” After a stent placement in the right ureter was unsuccessful, this gynecologist immediately referred Tracy for a renal scan to measure renal function.
Shortly thereafter, a renal scan revealed that Tracy’s left kidney was functioning at 93% and her right kidney was functioning at only 7%. Tracy was then referred to a surgical urologist who performed a right nephrectomy (removal of kidney). The surgical neurologist documented that Tracy’s right nonfunctioning kidney was the result of a ureter insult during her laparoscopic hysterectomy 5 years earlier and also noted that her pain was due to the nonfunctioning kidney.
We had the case reviewed by an expert gynecologist, expert urologist, expert internal medicine/PCP specialist; and an expert radiologist. The experts were all very critical of their respective colleagues and expressed opinions that the Defendants were negligent and that the negligence caused Tracy to lose a kidney and also caused 5 years of severe pain.
Dr. Gynecologist’s incredible defense was that the sutures had nothing to do with any of this (i. e. Plaintiff’s experts were wrong, the treating physicians were wrong, and common sense was wrong). Instead, Dr. Gynecologist’s expert claimed that Tracy, coincidentally, had an ongoing chronic hydronephrosis process, with an unknown cause, that began before the hysterectomy. Dr. Gynecologist’s expert also opined that Tracy didn’t have enough symptoms over the five year period to suspect a kidney/urologic injury. Notably, Dr. Gynecologist’s expert did point his finger at Dr. Radiologist for steering Dr. Gynecologist away from a hydronephrosis diagnosis following the ultrasound.
Dr. PCP’s experts ignored that Dr. PCP never ordered any imaging studies and ignored that Dr. PCP only ordered blood work (which never gave any explanations for Tracy’s ongoing problems). Instead, while acknowledging that hydroureter and hydronephrosis are known complications of a hysterectomy, they claimed that Tracy just didn’t have enough symptoms for Dr. PCP to suspect a kidney/urologic cause. For example, even though Dr. Gynecologist and Dr. PCP documented that Tracy had, among other things, pelvic pain, right lower quadrant pain, a tight abdomen, stabbing pain in lower abdomen, an achy body, aching pain in her low back, and severe lower abdominal pain and pressure, the experts claimed that since Dr. Gynecologist and Dr. PCP didn’t specifically write down “flank pain” (which is defined as pain in either in the side and back, and/or into the abdomen and may be achy, cramp-like, or colicky - meaning it comes and goes in waves), that meant Tracy did not have it and that was the big “missing symptom” that Dr. PCP needed to explore a kidney/urologic cause. As common sense indicates, “flank pain” is a matter of semantics and subject to what doctors chose to write down. For example, the surgeon who removed the kidney heard of Tracy’s same pain symptoms and documented, “Mrs. Balmene tells me that after the hysterectomy, she started to develop this flank pain. “
Dr. Radiologist’s experts essentially acknowledged that Dr. Radiologist was negligent in his reading of the ultrasound and acknowledged that it is “very clear in retrospect that the kidney was severely hydronephrotic. ” Also, they essentially pointed the finger at Dr. Gynecologist for not recognizing that Dr. Radiologist qualified his diagnoses and for not providing enough information to Dr. Radiologist regarding Tracy’s urinary complaints. Ultimately, Dr. Radiologist’s defense was more that Tracy’s kidney was already too far gone for his obvious negligence to play a role in losing the kidney; however, it cannot be disputed that his negligence led to almost four more years of torment and anguish for his patient.
From the ages of 39 to 44, Tracy spent her days in anguish, in misery, wondering what was causing her ongoing pain, urinary problems, hypertension, swelling, etc. She was looking to Dr. Gynecologist and Dr. PCP, her long-time physicians, for help. She trusted them. She relied on them. In turn, they thought she was simply just “anxious” about her health, that she wouldn’t let normal complaints go, or that her pain had no medical explanation.
Throughout this long period, Tracy’s activities of daily living were drastically complicated by her problems. She would wake up in pain, she would be tired, she would constantly use heating pads to try and reduce pain, she wasn’t very interactive or social, and she would go to bed early. This is how she lived for more than five years. During this same time frame, as documented in her records, Tracy was working, going to school, and also going through a difficult divorce while trying to raise two teenage girls.
In the end, the good news was the Tracy’s health insurance changed and another doctor finally found the cause of her ongoing problems. The bad news was that she ended up having her right ovary removed, her right fallopian tube removed, and ultimately her right kidney removed.
Following surgery, Tracy had a recovery period of several months while she dealt with the pain and her body’s rough transition to being without several organs. She was off from work for six weeks and had to take a break from school which delayed her dissertation and degree. And although the defense experts compared Tracy to someone who voluntarily donated a kidney for a worthy cause, that isn’t what happened here. It was not Tracy’s choice to lose several organs. She didn’t help another sick patient. She has to live knowing this was the result of carelessness from doctors she trusted.
Tracy’s life now consists of constant monitoring of her remaining kidney’s status. Every six months, she has to get kidney function tests performed (she holds her breath every 6 months and is concerned every day in between). This is the type of anxiety and worry Tracy will have to deal with the rest of her life.
It is very emotional for Tracy to think about or discuss losing the organs that she did, especially her kidney. She doesn’t feel “whole” and emotionally feels like the right side of her abdomen is empty. Because she also had her right ovary, right fallopian tube taken out because of this, she deals with weight gain, edema, and hormonal issues.
When Tracy has other health concerns or even a headache, because she only has one kidney, her doctors only permit her to use ibuprofen or Tylenol very sparingly, and she is limited with regard to other mediations, such as antibiotics, she may need in the future. Tracy has and will be required to be on a special diet and fluid restriction the rest of her life. She is at risk for hypertension and proteinuria. Tracy is also constantly worried that something could happen to her remaining kidney, whether it is from a car accident, disease, or anything else, that may result in needing a kidney transplant, dialysis, etc. This affects every day of her life.
As our expert urologist from Yale University stated in his report, “A solitary kidney incurs the risk of developing complete renal failure in the future” and Tracy “is at a significantly increased risk of end stage renal disease. ” While some defense experts downplayed the risk of having one kidney, at least one defense expert acknowledged that Tracy’s future risks includes everything from hypertension to proteinuria to a “statistically significant” and “higher risk” for end stage renal disease during her lifetime.
“I worry all the time, ‘What if something happens to my good kidney? Then what will I do? ’ I will have to be on dialysis and I will have to be looking for a kidney transplant, which isn’t easy. ” – Tracy Balmene
After filing suit, we took extensive written discovery and the videotaped depositions of Dr. Gynecologist, Dr. PCP, Dr. Radiologist, and our client. After exchanging expert reports and having the case listed for a jury trial, the Defendants suggested to mediate the case (in this setting, a mediation is where all parties agree to voluntarily meet with a neutral mediator who attempts to settle the case). At the mediation, which was held before a former judge, we settled with Dr. Gynecologist, Dr. Radiologist, and the Hospital for a substantial amount. Because Dr. PCP’s insurance company refused to offer any money, the case was still scheduled to be tried solely against the PCP; however, shortly before trial, Dr. PCP’s insurance company changed its tune and settled the remaining part of the case.