Did failure to do surgery timely result in loss oftesticle?

CASE ON POINT: Moore v. New York Medical Group, P.C., 2007 NYAPP1 2007-07459--(10/09/07)-NY

CASE FACTS: On April 16, 1993, Gina Townsend brought her three-week-old son, Devon, to the emergency room at Jacobi Medical Center, operated by New York City Health & Hospitals Corporation (HHC).

A triage nurse spoke with Gina before examining Devon. The nurse noted: "Complained of not taking bottle times five hours ago. Feeding well with good suck at triage....crying a lot....no vomiting or diarrhea, denied fever. Right testicle swollen, cries every diaper change." Following the triage, and before he examined Devon the resident noted: "A three-week-old with a known hydrocele on his right testicle since birth. Morn noticed three days ago increased lump with crying. Today, increased crying, decreased oral intake, increased swelling. Last medical history, birth history normal, has been eating well except for today, three to four ounces every three hours." The resident diagnosed a hydrocele on the right testicle and a right inguinal hernia. With respect to the hernia, the resident noted "positive swelling, no erythema." The hernia was reducible. The intestinal tissue protruding into the scrotum could be pushed back into the abdominal cavity. This was done by the resident. The attending physician, a board--certified pediatrician, reviewed the resident's note, examined Devon, and signed the resident's note. Devon was discharged at approximately 5:30 a.m., on April 17. Gina was instructed to make a follow up visit to the Health Insurance Plan of Greater New York (HIP), Devon's primary care provider. Gina was informed that Devon would require surgery and that she should make an appointment for surgery at HIP. She was cautioned to watch for symptoms of incarceration i.e., a hernia that is difficult to, or cannot be, reduced. Gina took Devon to a HIP facility several hours after discharge. The physician who examined Devon confirmed the previous diagnosis. He explained to Gina that if the swelling in the area of the hernia continued and could not be reduced, or if Devon cried or vomited, he should be brought to the emergency room. The physician also advised Gina to return in three days. Two days later, Gina returned with Devon to HIP for his regular checkup. The physician who examined him was unable to reduce the hernia and immediately sent him for a pediatric surgical consuit. The surgeon determined that the hernia was incarcerated and operated two days later to repair the hernia. Devon's right testicle had liquefied, leaving him with only one viable testicle. Devon's mother filed suit against HHC, alleging that it failed to meet the standard of care by not immediately referring Devon for surgery. Devon sued HHC. The trial court granted summary judgment for HHC. The plaintiff appealed.

COURT'S OPINION: The Supreme Court of New York affirmed the trial court's order granting the HHC's motion for summary judgment, which resulted in the dismissal of the plaintiff's case. The court held that the plaintiff failed to prove his case.

LEGAL COMMENTARY: A dissenting opinion was filed. In the dissenting judge's opinion, there was, in fact, a triable issue of fact as to when surgery should have been performed in order to save Devon's testicle. The dissenting judge noted that the hospital record showed that the hernia was described as "reducible." The dissenting judge was troubled by the fact that immediate surgery was not performed on Devon by HHC. Devon's mother was only given instructions to make a surgical appointment for him. However, just five days later, on April 21, when surgery was finally performed on Devon, surgical records indicated that one of the testicles had completely liquefied and the "entire scrotum [was] filled with some old hemorrhage tissue." The dissenting judge noted that the defendants' expert medical witnesses offered differing opinions from the plaintiff's expert medical witnesses. It was precisely for this reason that the dissenting judge was convinced that the case presented a triable issue of fact that precluded summary judgment. It was further noted that the triage nurse who first encountered Devon in the ER at HHC admitted that she had not taken down as "thorough" a history as she should have. In fact, the triage nurse conceded that she should have asked about the duration of swelling to help establish the severity of the condition. Further, it was noted by the dissenting judge that while the defendants argued that Devon's hernia was not incarcerated because had it been, it could not have been reduced, that theory was at odds with the testimony of Devon's surgeon who stated that his procedure was "if a child has a hernia that's incarcerated that I reduce, I wait 24 to 48 hours to schedule a repair." Thus, the dissenting judge found that the record, rather than conclusively establishing the severity of Devon's condition, only raises issues of fact, which could not be resolved on a motion for summary judgment. The dissenting judge concluded his opinion by pointing out that Devon raised a triable issue of fact as to whether the hernia was improperly reduced, resulting in the loss of the right testicle. The plaintiff's medical expert opined that the process of reducing the hernia may cause damage to the testicle "if it is done too forcefully or incompletely" and "[an} incomplete reduction could leave the testis stuck in the opening and cause strangulation or loss of blood supply to the testis" Editor's Note: The editor concurs with the dissent.