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Attorney: Michael Makowicz
Settlement: $275,000.
Spring 2008

Blume Goldfaden Partner, Mitch Makowicz, represented a 14 year old boy, who in the early morning hours of a school day in May, 2000, was taken to the emergency room by his parents. He had awoken with complaints of intense lower left abdominal pain, but no diarrhea or vomiting. The defendant emergency room physician, a pediatrician by specialty, ordered abdominal x-rays and performed an abdominal exam. He did not physically examine the boy’s scrotum and did not order a testicular scan. The doctor diagnosed constipation and ordered an enema be given.
The next day, the boy returned to school. When he could no longer bear the continuing pain, he went to the school nurse. The nurse contacted his mother and advised that he be seen by his personal pediatrician as soon as possible. The pediatrician immediately suspected a testicular torsion, and emergently referred the boy to a pediatric urologist. Surgery was then performed on an emergent basis by the pediatric urologist, but it was too late to save the necrotic testicle.
The Plaintiff’s expert would have established that this set of facts is a classic presentation of testicular torsion, or a twisting of the testicle within the scrotum. Torsion can occur due to trauma, or it can occur spontaneously. When it occurs, the blood supply to the testicle flowing through the spermatic cord is compromised, and the testicle must be de-torsed promptly, within six to eight hours according to many medical texts, if the testicle is to remain viable. The expert would have further testified that any complaint of lower abdominal pain in a male child requires a diagnosis of possible torsion, and thereby mandates that torsion be ruled out. A physical examination may reveal a torsion, but by 2000, a testicular scan (ultrasound) was the definitive test for diagnosing or ruling out torsion. The Defendant testified at deposition that he was unaware that abdominal pain alone can be a presenting symptom of torsion and did not include it within his differential diagnosis, but claimed that he had done a visual examination of the scrotum. However, he then conceded that he knew a visual examination alone is insufficient to diagnose or rule out torsion.
There was no evidence that the boy is incapable of reproduction as a result of the loss of the testicle. The case settled for $275,000.