Power Rogers & Smith Obtains $30 Million Settlement for Client after Botched Nephrectomy

Posted By Power Rogers & Smith, P.C. || Feb 19, 2015

As reported on the front page of the Chicago Daily Law Bulletin, last week a lawsuit on behalf of Steven Karr was dismissed pursuant to a $30 Million Settlement. The case was handled by partners Joseph A. Power, Jr. and Joseph W. Balesteri of Chicago personal injury lawfirm Power Rogers & Smith, L.L.P.

JAP and JWB

The case involved a botched nephrectomy, which caused permanent and catastrophic injury to Steven Karr.

On July 15, 2011, Mr. Karr underwent surgery at Elmhurst Hospital for what was supposed to be a simple kidney removal, due to the presence of a tumor. The surgeon performing the nephrectomy was Defendant Khalid Badwan, M.D., a urologic surgeon with specialty training in laparoscopic techniques. Dr. Badwan requested that his partner, Scott Cinel, M.D., assist (as the first assistant urologist) in the laparoscopic approach to remove the left kidney. Hours into the case, Dr. Cinel left the operative suite to perform a vasectomy on one of his office patients.

Dr. Cinel’s departure from the operative suite was not described within the medical records. Hospital Rules and Regulations from the Department of Surgery required that an M.D./D.O. first assistant be present and scrubbed for all major parts of a nephrectomy. Dr. Cinel’s role included holding the camera utilized by the lead surgeon (Dr. Badwan) for visualization and magnification of the relevant anatomy. While Dr. Cinel was out of the procedure, the camera was being operated by a cardiovascular technician brought into this urologic case.

After Dr. Cinel’s departure, Dr. Badwan encountered bleeding from an unknown source and, instead of converting the surgery to an open procedure, a GIA stapler was fired into the surgical field.

A GIA stapler has both a stapling application and a cutting component. The stapler cutting mechanism follows a trigger pull between placed staples. The standard of care does not permit stapler use on unknown anatomy. The GIA stapler was left in place after firing to help identify the bleeding source and physician assistance was sought from a neighboring operating suite to help control bleeding and to assist with converting to an open nephrectomy.

The remainder of the case was concluded by Dr. Badwan with assistance from a general surgeon who had been operating in an adjacent operating room (Dr. Stephen Mendak, who did not participate in the settlement, was coincidentally operating in an adjacent suite). Dr. Badwan testified that he did not cause the stapling injuries and that Dr. Mendak was the only other individual who used a stapler during the case. Dr. Cinel did return to Mr. Karr’s operative suite before closure to hold a retractor, according to his testimony.

After the surgery was complete, Steven Karr had pain in his lower extremities, lacked pulses in his legs, and was unable to move his legs while in the post-anesthesia care unit. Work-up was instituted looking for spinal cord compression issues from a prolonged surgery via a neurosurgical consult but the results were negative. Efforts were next made following an abnormal arteriogram to determine if there had been clotting within the aorta as the arteriogram revealed a possible obstruction (an area of darkness within the aorta). Emergent consultation with an interventional radiologist included efforts from above and below a dark aortic abnormality on the arteriogram to pass and open an obstruction but the area was impassable. It was later discovered (at Loyola) that his the darkness was aortic separation from transection and the proximal and distal aorta was stapled. The decision was made to transfer Steven Karr to Loyola University Medical Center for exploratory surgery.

Shortly after midnight on July 16, 2011, Dr. Richard Hershberger, a vascular surgeon at Loyola, discovered that Steven Karr had experienced aortic ligation, aortic transection, and right renal artery injuries to his healthy kidney (on the right side) from a stapling device. These injuries were unrecognized at the time they occurred by the operating physicians, prior to closure at Elmhurst.

As a result of these physician-caused injuries, Mr. Karr is a paraplegic and is on permanent dialysis. His dialysis regimen includes treatment three times a week (about 4 hours a visit) with physical therapy sessions on the other weekdays since 2011. Mr. Karr worked during the years that followed his injuries once discharged from his acute hospital stays in 2011.

The medical negligence lawsuit was filed on Karr's behalf in Cook County Circuit Court in 2011.

This case shows that "a procedure to remove a kidney, which has been done for about 100 years, can still be injurious without appropriate safeguards," Balesteri said. "No medical literature exists to describe injuries of this nature during a nephrectomy. You can't use a stapler on anatomy you can't see even if the assistant surgeon has left the surgery," he said.

Karr plans to use the settlement proceeds to buy a home with wheelchair accessible features and for future medical and therapy needs, including dialysis, Balesteri said.

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