visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
You are probably wondering how any penis surgery might be unauthorized.
Read on.
Keith Burchell went to Loma Linda University Medical Center in California for evaluation and treatment. Recall that in the 1970s, California implemented among the nation’s toughest tort reforms. California caps non-economic damages (often known as pain and suffering) at $250k. Attempts to update the $250k to a higher number, even if adjusting for nothing more than inflation) have gone nowhere.
Mr. Burchell had a small scrotal mass. The plan was to remove it surgically and obtain a pathologic diagnosis.
During the operation, his surgeon learned the mass was more extensive than initially thought. It extended into the patient’s penis.
Intraoperative observation suggested the tumor might be malignant. Even if it were benign, there was a significant risk that it would continue to grow. The excision extended beyond the scrotum to “include resection of proximal corpora.” This extensive resection would likely render the patient impotent.
The patient was under anesthesia, so he was not awakened for input. In addition, the patient’s ex-wife was designated healthcare proxy. This nugget of information was included in the consent form. The surgeon apparently glossed over that detail. No additional consent was obtained from the ex-wife even though she was present at the facility.
I pause here to note that an ex-wife was serving as healthcare proxy (power of attorney) for her ex-husbands scrotal mass. I’m assuming they parted on reasonably good terms.
The surgical specimen was 8 x 5 x 2.5 cm.
The pathology report delivered good news. The lesion was benign. It was a cystic lymphiangiona.
The post-op course was anything but good news.
The patient developed an infection that required emergency treatment.
He also experienced difficulty urinating, pain, numbness, and impotence.
Two reconstructive procedures helped address the pain. But the patient still failed to regain full erectile function. His penis deviated to the right side.
To quote the patient:
[The] current implant slipped backward, so that when inflated “the end of [the]penis droops over the cylinder,” and sex is painful.
A lawsuit was filed alleging both medical negligence and battery. Relevant to a surgical procedure, battery is a “harmful or offensive touching” without consent. Usually, surgery is done with explicit consent. Most consent forms allow the surgeon to perform “indicated procedures” if something relevant is detected intra-operatively. Normally that something would be to fix a problem the surgeon may have caused during the intended procedure, such as removing an injured spleen during an extensive abdominal procedure for invasive neoplasm. You cannot leave the patient hemorrhaging.
In contrast to negligence, battery is considered an intentional tort. Professional liability carriers generally do not provide coverage for intentional torts. Battery is no exception.
Will a carrier pay to defend against medical battery? Usually, yes, since any defense against battery is tightly linked to defending the same case alleging negligence – which would be covered. The carrier will still reserve the right to avoid paying for settlement or judgment.
The outcome:
After a trial in 2018, the jury awarded the plaintiff $4 million in past noneconomic damages and $5.25 million for the remainder of his life, far exceeding California’s statutory cap of $250,000. The judge approved the damages plus $1 million in prejudgment interest and $27,900 in expert witness fees.
Loma Linda appealed, saying the verdict was excessive in comparison with the plaintiff’s $23,346.11 in actual economic damages. The appeals court disagreed, finding the state damages cap applies only to medical negligence, not intentional acts like the surgeon’s decision to remove more tissue without seeking the patient’s consent.
The California Supreme Court has found the noneconomic damages cap applies when the patient suffers a rare complication that the doctor failed to disclose before treatment. But here, the plaintiff didn’t consent to any surgery on his penis. The surgeon testified he was worried the mass would injure the plaintiff’s urethra if it continued to grow, but that wasn’t a life-threatening emergency, the court found.
The court also rejected Loma Linda’s argument the plaintiff lawyer improperly goaded jurors into awarding punitive damages, which aren’t allowed, by telling them they needed to send “a message” to the hospital and to protect future patients like themselves.
While the arguments were improper, the court found, jurors were “instructed in no uncertain terms punitive damages were not to be awarded.”
Here, the appellate court concluded there was no life- or health-threatening situation that justified the surgeon’s intra-operative decision to perform an operation substantially beyond the scope of Burchell’s express consent. With the benefit of hindsight, the surgeon should have stopped and brought the patient into the decision-making process. Or he should have paused and asked the healthcare proxy for consent.
Frequently surgeons take actions for convenience, including the patient’s convenience. I cannot imagine the patient, or his healthcare proxy, would have made a different decision. Each likely would have said go ahead with the full procedure. Regardless, that is not how consent works. Other than the risk of a second anesthesia, the procedure could have been staged without harming the patient. When in doubt, ask.
This case will be expensive. Most professional liability policies provide $1M total payout per defendant per case. Since the practice was part of an academic medical center, it likely has the deep pockets to make the full payment even if its carrier balks.
Finally, because the case alleged battery, an intentional tort, state reforms capping non-economic damages did not apply. Here, the sky was the limit. Tort reform helps to cap damages. Remember, though, the protection is not absolute. What do you think? Let us know your thoughts below.
visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Learn how Medical Justice can protect you from medico-legal mayhem…
Take Advantage of Our Review Monitoring Service
With eMerit, we help you automate review collection and posting to improve your online reputation.
Consult with a Medico-Legal Expert
Medical Justice Founder and CEO, Jeff Segal, MD, JD and our expert team provide consultations to doctors in need of guidance.
Meet the Experts Driving Medical Justice
Our Executive Team walks with our member doctors until their medico-legal obstacles are resolved.
When it doubt, its best not to proceed on, even if it means leaving tumor behind or if a lawsuit results from failure to diagnose extent. On another note, the surgeon could’ve at least obtained a frozen section of the specimen to determine presence of malignancy. If the surgeon realized that he had no consent to go further and had a benign path report, he might’ve felt more comfortable with cutting the surgery short to obtain consent. Even if he did close it up early and avoided those complications, he still might be subject to hospital peer review and lawsuit for having the patient go through two procedures, but the penalties would’ve been less severe. All things being said, it would’ve been better to have consented the patient for this possible additional surgery with all the risks in advance.
My initial thought was: “Ever heard of ‘frozen sections’?”
Since this is a relatively recent case, in the modern era, the surgeon clearly was not fully instructed in informed consent. There was no proof at the time of surgery that indicated that the mass was malignant. Even so, if it were malignant, what harm would have been caused by staged surgery that delayed the second procedure by a couple of weeks or a month? If it were malignant the patient would need time to adjust to the idea of impotence, and other penis deformities, which a staged procedure would have given him. He went to sleep whole expecting a little incision, and woke up with a big incision and a more major procedure. Was this pure arrogance on the part of the university surgeon? Yes. Would a surgeon in private practice in the modern era do something like this, when they are paying their own malpractice insurance. Unlikely. Maybe the surgeon involved and the university will educate their staff about informed consent so that this never happens again.
There was a surgeon who was an attending where I did my diagnostic radiology residency. At some point (well after I finished training and left) he apparently decompensated during an operation, began acting completely irrationally, and did great harm to a patient. I do not know whether the patient survived. If the report was correct, the surgeon was clearly schizophrenic. I knew the guy pretty well. He was certainly quirky, but I sure didn’t see the decompensation coming.
Which raises the question of whether the surgeon in the Loma Linda case was sane. Or imagining things that weren’t really there.
Anytime a surgeon is working on or around genitalia on a younger person, they should be well aware that any unplanned intrusive surgery is a special added risk.
Even in podiatry we had a saying: “You don’t want the patient being reminded of your error with every painful step.”
I can’t help but think that this surgeon felt “protected” by his large employer’s deep pockets and on-retainer cadre of waiting counsel.
Podiatrists rarely order frozen sections, but even we are aware of their availability.
Michael M. Rosenblatt, DPM
This small scrotal mass was larger than most scrota! I assume no frozen section was acquired since this was at an ambulatory facility. I also assume there was no imaging study since the surgeon may have felt the “tip of the iceberg” and thought it was the entire mass. Corpora is plural for corpus, and these are the spongy things that enable an erection – I think we have 3 of them. Hindsight is 20:20, and I think the award is beyond excessive. That said, an excisional biopsy would have saved everyone a lot of aggravation and debt.