Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.