$2.38 Million Verdict for Prostate Cancer Patient Left Incontinent After Nurse Gave Unapproved Enema

Clinton Dean Lovell was diagnosed with prostate cancer in July 2003. On August 11, 2003, he underwent a radical retropubic prostatectomy at Sarah Bush Lincoln Health Center in Mattoon, Illinois, and went home with a Foley catheter. Four days later he saw one of his urologists complaining of a bloated, constipated feeling. The exam was reassuring: no fever, no infection, normal bowel sounds, clear urine. He was told he was healing normally.

The next day, August 16, 2003, he went to the hospital's emergency room because he felt no better. The emergency physician diagnosed a post-operative ileus and a urinary tract infection and admitted him. A family physician then wrote an order in the chart that was conditional on its face: a Fleets enema, if okay with Dr. Rives, the urologist who had operated. Nobody asked Dr. Rives. A nurse directed a certified nursing assistant to give Lovell a tap-water enema. After only a tiny amount of water had gone in, the aide saw it leaking into the catheter bag. Water entering the rectum was coming out through the bladder.

Dr. Rives later explained to the jury what had happened. The rectal wall is only a few millimeters thick and sits directly against the sutured area where the prostate had been removed. Either the pressure of the fluid or the enema tip itself had opened the fresh surgical site into the rectum, creating a fistula between the rectum and the bladder. He testified he would never have approved the enema.

What followed was more than a year of surgery. Lovell was fed intravenously for about two weeks. In September 2003 he had a colostomy to divert stool away from the fistula. In January 2004 a bladder catheter was placed through his abdominal wall to divert urine. In April 2004 the fistula was surgically repaired, and in July 2004 the colostomy was reversed. In October 2004 he had an artificial sphincter implanted to control urinary incontinence. He described for the jury how he now urinates: sit, spread his legs, locate and press a release bulb in his scrotum several times to open a pressure cuff around his urethra. The device fails about twice a year. He keeps a second set of clothes and wears diapers that he sometimes changes three times a day.

Lovell sued the hospital in the Circuit Court of Coles County in June 2005. Steven K. Jambois of Kralovec, Jambois & Schwartz, with Alexander Sukhman and Ryan Yagoda of the same firm, tried the case in September 2008 before Judge Richard E. Scott. Sarah Bush Lincoln admitted that the enema breached the standard of care but fought causation, calling experts in urology, colorectal surgery and pathology to argue that the fistula had really been created during the prostatectomy and the enema merely uncovered it. Lovell's colorectal surgeon, urologist and rebuttal pathologist said otherwise. The jury returned a verdict for Lovell of $2,378,258.

The hospital appealed, arguing that Lovell's opening statement and closing argument were improper and that the trial court should not have allowed medical literature on the standard of care once negligence was admitted. On January 12, 2010, the Illinois Appellate Court, Fourth District, affirmed, holding that the hospital had forfeited its challenge to the opening statement by not objecting at the time and that the trial court had not abused its discretion on the closing argument or the evidence. Michael W. Rathsack argued the appeal with Jambois, Sukhman and Yagoda on the brief.