Sometimes in a medical malpractice case the issue is not whether an error was made or not – the question is how much the error is worth. In this month’s case we look at a situation where both sides agreed that an error had been made, but they couldn’t agree on what ‘reasonable’ compensation should be to compensate for that error. Additionally, the type of injury the patient suffered made the jury particularly sympathetic, resulting in a large award for the plaintiff.

The patient, Mr. H, was a married, 67-year old, retired factory worker. When a routine blood test showed a higher than normal PSA, Mr. H’s urologist advised him to have a prostate biopsy to check for cancer. Mr. H had the biopsy, and the results came back positive.

The urologist called Mr. H and his wife into his office and gave them the bad news. “It appears that you have prostate cancer and that it is aggressive,” the physician told the patient. He then told Mr. H that the best treatment option in his case would be removal of the prostate. The surgery was scheduled.

Following the surgery, however, pathologic examination of the removed prostate revealed no cancer. It was subsequently discovered that Mr. H’s original tissue sample had been mixed up with that of a patient who had prostate cancer, leading to an incorrect diagnosis, and an unnecessary surgery.


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The urologist, the pathologist who mixed up the samples, and the pathologist who discovered the error, were all employees of a large medical clinic. After the error was discovered, the clinic notified the patient about the error.

Unfortunately, during the prostatectomy Mr. H suffered nerve damage which left him impotent and incontinent. The devastated patient and his wife sought the counsel of a plaintiff’s attorney. After reviewing the medical records, the attorney told Mr. H that he had an excellent chance of winning a lawsuit in this case and the attorney advised Mr. H and his wife to sue. They initiated a lawsuit against the clinic and the pathologist who had mixed up the samples and asked for $15 million in damages.

The clinic acknowledged that the error had happened, but they disputed the amount of damages the patient should get. Settlement negotiations failed, and the case headed to trial.