When Does VCUG Constitute Medical Malpractice?

Disclaimer: While the information on this site is about legal issues, it is not intended as legal advice or a substitute for legal counsel. Anyone seeking legal assistance should seek representation from a licensed attorney.

While the vast majority of healthcare providers strive to provide quality care under the “first, do no harm” doctrine, errors are inevitable. When these mistakes result in harm to patients due to negligence or malpractice, victims may be eligible to recover compensation in a medical malpractice lawsuit. 

The Unsilenced Movement is committed to raising awareness about the real and lasting impacts of voiding cystourethrogram (VCUG) on patient health in pediatrics and beyond. This procedure is known to result in detrimental health effects that persist well into adulthood, robbing survivors of the safe, normal childhood that every child deserves.

In some cases, VCUG performance may constitute legal grounds for a medical malpractice lawsuit. Keep reading to learn more about your legal options after VCUG.

Understanding Medical Malpractice in Pediatric Urology

Medical malpractice laws vary from state to state, so it’s important to consult a licensed legal professional to determine whether you have grounds for a lawsuit. Generally speaking, medical malpractice violations occur when a provider deviates from the expected standard of care.

A journal published by the National Institutes of Public Health (NIH) defines medical malpractice as “any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Common examples of medical malpractice include:

• Misdiagnosis

• Failure to treat

• Surgical errors

• Informed consent violations

• Failure to advise of diagnosis

• Continuing a treatment shown to be ineffective

• Failing to notify parents of safe, available treatment options, including no treatment

In the context of VCUG, informed consent violations are common grounds for medical malpractice lawsuits. From continuing ineffective treatments to failing to disclose available alternatives that may be appropriate for your child’s care, seeking sound counsel is critical to holding negligent providers accountable in pediatric urology.  

Medical Malpractice vs. Medical Negligence

While medical malpractice and medical negligence are similar, there are some discrepancies between the two in most states. While both principles involve medical errors resulting in injury to patients, the key difference lies in whether the healthcare professional had knowledge of the potential harm that their action or inaction may cause. The latter constitutes medical malpractice.

In the context of VCUG, voiding cystourethrograms may constitute medical malpractice when hospitals and clinics fail to disclose known risks, including psychological harm and child sexual abuse (CSA) symptoms. Keep in mind that consulting a legal professional is imperative to fortify your claim with relevant evidence and successfully establish liability in your case.

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Proving Liability in a Medical Malpractice Claim

Plaintiffs bear the burden of proof in a medical malpractice lawsuit, meaning that the patient is responsible for proving negligence on the part of the medical professional.

In civil lawsuits, the standard of proof requires plaintiffs to prove medical malpractice “by a preponderance of the evidence.” In other words, you must present sufficient evidence that malpractice "more likely than not" occurred.

4 Steps to Win a Medical Malpractice Lawsuit

 To successfully recover damages, you must establish these four critical elements: 

1. Duty of Care: First, the patient must show that their provider owed them a duty of care. Healthcare professionals have a responsibility to provide a certain standard of care to patients (e.g., acting like any competent medical professional would; acting reasonably and skillfully).

2. Breach of Duty: Next, the patient must establish that their provider breached this duty by acting negligently, such as informed consent violations, misdiagnosis, failure to treat, etc.

3. Causation: Then, the patient must demonstrate a link between the provider’s negligence and the harm suffered as a result. It isn’t enough to suffer injuries or harm—you have to establish causation between the harm suffered and the healthcare professional’s actions.

4. Damages: Finally, the patient must show they suffered actual harm (“damages”) as a result of the medical malpractice. This is what makes you reliable to recover compensation for financial losses (medical expenses, mental health counseling, etc.) and non-financial losses (loss of enjoyment of life, pain and suffering, etc.)

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Types of Medical Malpractice During VCUG

Depending on your location, certain elements of VCUG performance may constitute medical malpractice in the U.S. While specific medical malpractice laws vary from state to state, here are some general examples of potential medical malpractice involving VCUG:

Informed Consent Violations

Informed consent violations are arguably the most common type of medical malpractice during the VCUG test. Doctors are obligated to warn patients of all known risks prior to administering treatment, which includes well-documented evidence that many children experience this procedure as “a violent rape” (May 2014).

Here are some key examples of informed consent violations during VCUG:

• The doctor fails to inform parents of reasonable alternatives for treatment or testing, of which there are several.

• The doctor fails to disclose all reasonable information, including all foreseeable risks, to parents before performing a VCUG, including psychological trauma and child sexual abuse symptoms.

• The doctor fails to disclose the above information in a way that both the parent and the patient can understand.

In Canterbury v. Spence, the U.S. Supreme Court ruled that healthcare providers “have a duty to disclose material or relevant information to patients, even if the provider does not believe the information would impact the patient's decision.”

At the Unsilenced Movement, we strongly believe that providers have a moral and ethical obligation under the informed consent doctrine to clearly and comprehensively disclose the similarities between VCUG and child sexual abuse as documented in critically appraised research (1990; 1994; 2004). This empowers families to make fully informed decisions for their child’s physical, mental, and emotional well-being, as is their right.

If parents decide to proceed with VCUG after gaining a clear understanding of all information—including all foreseeable risks, alternative diagnostic measures, and alternative treatment options (including no treatment)—then providers can and should recommend appropriate follow-up care tailored to the child’s unique needs, such as mental health treatment with a licensed counselor or psychiatrist.

Diagnostic Errors

VCUG is the alleged “gold standard” to diagnose vesicoureteral reflux (VUR). The VCUG test is also routinely promoted to diagnose urinary tract abnormalities that aren’t related to VUR, yet many survivors report undergoing several or even dozens of VCUGs before their condition was diagnosed and treated.

 This subjects many pediatric patients to unnecessary testing, repeated trauma, and delayed treatment before the real problem is addressed. Alarmingly, these real-life experiences attest that VCUGs are rarely credited with diagnosing non-VUR conditions, such as ectopic ureters. 

Failure to Treat

Misdiagnosis, failure to diagnose, and delayed diagnosis all fall under the umbrella of diagnostic errors. However, a misdiagnosis doesn’t necessarily constitute malpractice on its own. To qualify as malpractice, the error must result in “actual harm” to the patient, such as:

• Improper medical care: This may apply in cases of providers ordering repeated VCUGs without actually achieving a diagnosis or offering treatment.

• Delayed treatment: For example, if a child undergoes a series of VCUGs that repeatedly fail to identify the abnormality—be it VUR or an unrelated condition, such as an ectopic ureter—this may be considered negligent if the provider failed to offer alternative diagnostic measures or treatment. 

• Failure to treat: Failure to treat can cost families precious weeks or months to administer repeated VCUGs, rather than providing the appropriate treatment to relieve the child’s pain and avoid life-threatening complications. Examples of treatment include antibiotics, ureteral reimplantation surgery, or corrective valve surgery, this may be grounds for a lawsuit.

It’s critical to understand that the voiding cystourethrogram procedure is NOT a form of treatment—it is purely a diagnostic tool. If a provider orders repeated VCUGs for your child without offering a diagnosis or treatment options, this is a red flag that may constitute malpractice.

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3 Signs of Medical Malpractice During VCUG

As a general rule of thumb, here are some common signs of medical malpractice during your child’s VCUG:

• Your provider didn’t offer alternative diagnostic measures or VCUG alternatives, such as contrast-enhanced urosonography (ceVUS).

• Your provider is ordering repeated VCUGs without offering a concrete diagnosis.

• Your provider is not offering treatment methods after VCUG, such as antibiotics or corrective valve surgery.
  

Remember, the foundation of a valid medical malpractice claim is deviating from the expected standard of care. Seeking legal counsel from a lawyer experienced in pediatric medical malpractice is key to understanding your legal options and making informed decisions for your health and well-being. 

Recoverable Damages in Medical Malpractice Cases

Patients and their loved ones may be eligible for compensation after VCUG if the procedure results in physical or emotional harm due to negligence. Depending on which state you live in and the unique circumstances of your case, various damages may be recoverable in a medical malpractice claim.

“Damages” refer to compensation for losses related to the injury. Their purpose is to make the plaintiff “whole” by restoring the victim to the same position they would have been in if they never sustained the wrongful injury.

 Examples of recoverable damages include: 

• Economic damages for financial losses, such as medical expenses, current and future treatment costs, and lost wages. 

• Non-economic damages for non-financial losses, such as emotional distress, pain and suffering, disability and disfigurement, loss of enjoyment of life, and loss of consortium.

• Punitive damages in rare cases involving extreme negligence. Unlike the above damages, punitive damages are awarded as a means to punish the defendant and deter similar behavior in the future, as opposed to compensating the victim for direct losses.

Can I Recover Damages for Psychological Trauma/PTSD After VCUG?

Absolutely. Psychological harm, including post-traumatic stress disorder (PTSD), is generally considered a type of non-economic damage in medical malpractice cases. Compensation for mental health treatments and counseling may also qualify as economic (financial) losses in a medical malpractice lawsuit.

Keep in mind that state-specific laws may affect your ability to recover non-economic damages after VCUG. Some states impose damage caps and other elements when it comes to seeking compensation. The best way to accurately calculate available damages in your case is to seek representation from a qualified medical malpractice attorney.

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How Long Do Patients Have to File a Medical Malpractice Claim?

It depends on your state of residence. Statutes of limitations for medical malpractice claims vary by state in the U.S. Sadly, these statutes do very little for victims who recently obtained their medical records or recovered VCUG memories due to dissociative amnesia—a common phenomenon in child sexual abuse victims.

Typically, statutes of limitations for medical malpractice range from 1 to 6 years from the date of the alleged malpractice or from the date the malpractice was discovered or should have been discovered. Some states have passed legislation to extend or eliminate statutes of limitations for medical malpractice claims related to sexual abuse.

For example, New York passed the Child Victims Act in 2019, which temporarily lifted the statute of limitations for child sexual abuse cases, including those involving medical malpractice. It’s essential to verify this information in your state laws specifically to determine your eligibility for filing.  

Join the Unsilenced Movement

Since 2023, the Unsilenced Movement has been dedicated to unifying former VCUG patients in healing, survivorship, and advocacy for VCUG reform. VCUGs are performed on up to 1 million kids every year without disclosing the debilitating, long-lasting risks of the procedure, including severe sexual trauma, chronic aversion to medical care, vaginismus, susceptibility to abuse and addictive behaviors, reduced quality of life, and many others.

Whether you’re a healthcare professional seeking to provide better care for the young and vulnerable pediatric cohort, a concerned parent seeking to provide the best care for their child, or a fellow VCUG survivor grieving the child you could have been, we’re here to meet you wherever you’re at in our healing journey. Our organization offers monthly support groups via Zoom and a variety of private and public online platforms to give former patients a safe space to heal, connect, and rediscover hope after VCUG trauma. All are welcome.

Join the Unsilenced Movement to help us advocate for overdue reform in pediatric urology. Because kids deserve better. #MoreThanATest