this theory is speculative. The plain fact is that some things in
medicine are never known. Based on the evidence submitted at this
trial, I cannot say what caused this fistula to develop.
80. I return, then, to the question of what caused the leak
from the anastomosis. Perez offers several arguments in support
of his theory that it was caused by the premature removal of the
catheter. None are persuasive. Plaintiffs first argue that there
was no leak from the anastomosis until after the premature
removal of the catheter. The first proof of leakage was on the
September 7, 1993 cystogram. Plaintiffs speculate that given this
indisputable temporal connection, the removal of the catheter and
the resulting urinary retention, followed by the
recatheterizations, must have damaged the anastomosis.
81. The problem with this theory is that there is simply no
evidence to support it. When the recatheterization was done in
the cystoscopy suite, the anastomosis was viewed by use of a
cystoscope. It showed that the anastomosis was tight and not
leaking. In order to circumvent this incontrovertible proof that
neither the urinary retention nor the recatheterizations damaged
the anastomosis, plaintiffs argue that if a cystogram had been
used instead of a cystoscope, injury to the anastomosis could
have been detected. But this argument is clearly speculative.
There is no proof of any injury to the anastomosis following the
successful recatheterization. Indeed, the proof is to the
82. Plaintiffs next argue that because the VMAC physicians
administered charcoal tests on August 31 and again on September
10, they must have been concerned about a possible recto-urethral
fistula. According to Plaintiffs, this demonstrates that they
knew they had damaged the anastomosis when they removed the
catheter and then reinserted it.
83. This theory, too, must be rejected. The VMAC physicians had
good reasons to test for a fistula, aside from any concern
arising from the removal and reinsertion of the catheter. As Dr.
Lizza and Dr. Torre pointed out, Perez had undergone a radical
perineal prostatectomy, which carries a known significant risk of
rectal injury, had locally advanced prostate cancer, which can
affect the lining of the rectum, and had experienced urinary
retention. Tr. 85-90 (Dr. Torre); 904-06 (Dr. Lizza). This
combination of factors was certainly sufficient to require the
precaution of testing for the presence of a fistula.
84. Plaintiffs' final theory is the presence of the leak on
September 7, 1993. Plaintiffs argument is a variety of res ipsa
— if the leak is there, the defendant's actions must have caused
85. This theory, too, must be rejected. Dr. Lizza testified,
credibly, and citing to the scientific literature (PX E), that
anastomotic leaks following this type of surgery are not
uncommon. Tr. 723-36, 947-49 (Dr. Lizza). There are many causes
for such leaking, including swelling, stricture, or even healing
of the anastomosis. Plaintiffs simply have not demonstrated by a
preponderance of the credible evidence that this leak was
caused by the premature removal of the Foley catheter.
VII. CONCLUSIONS OF LAW
86. The VAMC physicians and/or staff departed from accepted
standards of medical practice in their care and treatment of
Perez, solely with respect to the premature removal of the Foley
catheter. They did not depart from accepted standards of medical
practice in their care and treatment of Perez in any other
87. The sole departure from the accepted standard of medical
practice by the VAMC physicians and/or staff did not proximately
cause any of Mr. Perez's injuries.
88. Accordingly, the Defendant is not liable to the Plaintiffs.
Judgment is awarded in Defendant's favor, without costs to either
party. The Clerk is directed
to prepare a judgment and close this case.
© 1992-2003 VersusLaw Inc.