Did normal kidney simply disappear during surgery?

CASE ON POINT: Kibisu v. Shaul, 2009 CA-0205.025 (2/4/2009)--CA

CASE FACTS: Samuel Kirby was born in December 2007. During umbilical hernia surgery at the age of five months, it was noted that he had scoliosis and difficulty straightening his right leg. He was referred to Dr. Vernon Tolo, an orthopedic surgeon at Children's Hospital Los Angeles. Various diagnostic tests were performed, including an August 4, 1998, renal sonogram, which showed samuel's right leg and left kidney were of normal thickness and position. A November 11, 1998, CT scan of the abdomen and pelvis showed the kidneys and adrenal glands to be within normal limits. The imaging studies revealed a large soft tissue mass on the right side of the thoracolumbar spine in the concavity of his scoliosis. Dr. Tolo believed the reason that Samuel did not straighten out his right leg was that the mass involved the psoas muscle, which is the primary flexor of the right hip. Dr. Donald Shaul, assisted by Dr. Tolo, performed an exploratory biopsy on December 14, 1998, at Children's Hospital. The biopsy revealed "some type of fatty tumor and might possible [sic] represent a hemartoma [sic] versus a lipoblastoma." There were no indications of malignancy in the biopsy test results.. Surgery was performed for the removal of the tumor on February 1, 1999. Drs. Shaul and Tolo performed the surgery to resect and remove the mass. In order to expose the tumor for removal, Dr. Shaul moved the abdominal contents, including the right kidney, forward. The organs were moved as a single unit, with sponge pads placed over them to prevent damage or injury. Samuel was discharged from the hospital on February 10, 1999. Samuel had a follow-up visit with Dr. Shaul on February 23, 1999. He had recently had a lever, decreased oral intake, low white blood cell count and predominance of mononuclear cells. He also had weakness of muscles near the incision on the right side. Dr. Shaul believed that the symptoms were secondary to a viral infection. Dr. Shaul was seen again in April 1999, when it was determined that a postoperative incisional hernia bad developed. Surgery was performed without complications on April 28, 1999. On September 26, 2000, a bone scan was done to assess low back and right hip pain. The scan showed only one kidney! One report stated, "Absence of the right kidney may be secondary to congenital abnormality or previous surgery. Suggest clinical correlation in this patient with previous removal of a reported retroperitoneal mass." Samuel's mother brought suit for medical malpractice against Children's Hospital, Drs. Shaul and Tolo. The trial court granted the defendants' motion for summary judgment. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of California reversed the judgment entered by the trial court. The court held, inter alia, that the trial court erred in failing to recognize that issues of fact existed. The trial court should have considered all of the evidence and should have considered all inferences, which might have been drawn form the evidence in a light most favorable to the party opposing the defendants' motion. Further, the court observed that the case contained all of the requirements for the application of the doctrine of Res Ipsa Loquitur (RIL), which meant that the case had to be decided by a jury,

LEGAL COMMENTARY: The control ling question in this case was whether the doctrine of RIL was applicable to establish the existence of a triable issue of material fact. The trial court found that RIL was not applicable. However, the appellate court found that it was applicable. The court noted that the Supreme Court of California explained that: "... certain kinds of accidents are so likely to have been caused by the negligence of one or more defendants that one may fairly say 'the thing speaks for itself,' the Latin equivalent of Res Ipsa Loquitur." The court rejected Dr. Shaul's contention that there was no evidence that the kidney "disappeared" during the February 1, 1999 surgery, since the absence of the kidney was not noted until 19 months alter that surgery. The court found the evidence was uncontroverted that the patient had two kidneys prior to the February 1999 surgery, and had only one when a bone scan was performed in September 2000. The mere passage of time did not adversely impact the fact that the patient was under the exclusive control of Drs. Shaul and Tolo during the February 1999 surgery. Thus, the court recognized the application of RIL, to wit, whether the accident was of a kind which ordinarily does not occur in the absence of someone's negligence. Since RIL permits a jury to infer negligence from the happening of such type of accident, there is a basis in common experience, that when such an accident occurs, it is more probable than not the result of negligence. This was such a case. The uncontroverted evidence was that the patient had two kidneys which appeared normal before the February 1999 surgery. The court opined that a lay person could conclude, as a matter of common knowledge, that the loss of the kidney occurred during, or resulted from, the surgery. Further, the plaintiff not only relied on the application of RIL, but furnished an expert medical witness, Dr. Stewart Gleischman, a general surgeon at Cedars-Sinai Medical Center (with privileges at several other hospitals) who opined for the plaintiff.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.