Man Wins Big Award for Unauthorized Penis Surgery; More

Wayne J. Guglielmo, MA

October 07, 2020

Medical Battery: Patient and Proxy Didn't Agree to Penis Mass Excision

A California appeals court has confirmed a multimillion dollar judgment awarded to a man who sustained injuries following penis surgery neither he nor his medical proxy consented to, according to a story posted on Legal Newsline.

In 2014, Keith Burchell went to Loma Linda University Medical Center, in Loma Linda, California, to have a small scrotal mass removed for testing. The outpatient procedure was supposed to be a relatively simple one.

During the procedure, however, Burchell's surgeon, of Faculty Physicians and Surgeons of the Loma Linda University School of Medicine (FPS), discovered that the mass was more extensive than his presurgical exams had indicated, involving not only Burchell's scrotum but his penis as well.

Believing this larger tumor to be malignant — and convinced that even a benign one of this size posed a potential risk should it continue to grow — the surgeon elected to remove the total mass. In the process, he excised tissue not only from his patient's scrotum but also his penis, a procedure known as a "resection of the proximal corpora." Such a resection, the physician understood, would almost certainly cause his patient to become impotent.

Despite this, the surgeon went ahead without further consultation with either his patient (who was under anesthesia) or his patient's designated proxy, his ex-wife. (Because he'd failed to read the entire consent form, the surgeon was apparently unaware that Burchell had designated his ex-wife to be his proxy.)

The excised mass turned out to be benign, but Burchell experienced substantial postsurgical side effects. Some of these — including an infection that required emergency treatment — were temporary and ultimately resolved. Other effects, though, have proven more intractable, including difficulty urinating in the standing position, constant pain and numbness, and impotence. Two reconstructive surgeries — one in 2015, another the following year — have alleviated the pain somewhat but have "only partially and unsatisfactorily" resolved Burchell's erectile problems.

In his suit against the medical group, FPS, Burchell alleged both professional negligence and what's known in the law as "medical battery," which in California can be of two kinds. The kind most relevant in the Burchell case is when a doctor obtains patient consent to perform one type of procedure but ends up performing a "substantially different" type for which no consent has been obtained.

The trial jury sided with Burchell, awarding him $4 million for past noneconomic loses, $5,250,000 for future noneconomic loses, and roughly $22,000 in economic damages.

FPS appealed, arguing, among other things, that the state's long-standing cap on noneconomic damages — the Medical Injury Compensation Reform Act (MICRA) (1975) — should limit the plaintiff's noneconomic damages to no more than $250,000.

The appeals court disagreed. It would have been one thing, the justices said, had the surgeon, in the course of treating the patient, encountered a complication requiring a procedure for which the patient had not consented but that nevertheless constituted a life-threatening emergency requiring immediate attention. In such cases — which constitute a second form of medical battery — the physician would be liable for professional negligence but not intentional misconduct, because he or she had failed to make clear beforehand the range of potential complications of a given procedure. In cases of professional negligence, the MICRA cap does apply, according to rulings by the California Supreme Court.

This wasn't the circumstance that the surgeon faced, however. Although the mass he encountered did pose a potential risk to his patient, it didn't constitute a life-threatening and immediate threat. For this reason, his decision to move forward with a different and unauthorized procedure constituted "intentional misconduct," which the state's high court has said doesn't fall under the MICRA cap.

The appeals court upheld the trial jury's award, although it denied two other forms of plaintiff compensation, one for costs involved in calling expert witnesses, and another for prejudgment interest — that is, interest that had accrued on the jury's award while it was being appealed by the defendants.

Claims based on medical battery of this second kind are relatively rare. Why? Because medical liability insurance companies are reluctant to cover claims of intentional misconduct, thus leaving even successful plaintiffs chasing a defendant with empty pockets.

And although this may not be an issue in cases involving large corporations with deep pockets, says Eric Turkewitz, a New York trial attorney, it is very much an issue in the "regular" cases "that fill courthouses."

Challenge to State Wrongful Birth Shield

The Kansas Supreme Court heard a case last month that has the potential to overturn the state's 7-year ban on wrongful birth suits, reports The Kansas City Star, among other news outlets.

The high court review stems from a case involving Alysia Tillman, who in 2014 gave birth to a child with a severe neurologic abnormality. In a suit filed against the delivering physician, Tillman and the baby's father claim that the ob/gyn's failure to diagnose their baby's condition in utero deprived them of the option of terminating the pregnancy.

There was a wrinkle, however: In 2013, then Kansas Governor Sam Brownback signed a law that shields doctors from liability in all but the most egregious wrongful birth cases. (Currently, 26 states recognize wrongful birth lawsuits, although in recent years several states have passed statutes similar to Kansas'.)

The couple's claim was rejected by both state district and appellate courts. Last year, however, the plaintiffs' petition to have their case reviewed on constitutional grounds was accepted by the Kansas Supreme Court. If the court decides in their favor — and rules that the 2013 law violates not only the Kansas Bill of Rights but established common law (that is, law derived from legal precedent) — the case will be thrown back to the district court, where each side in the dispute will presents its arguments.

The attorney for the plaintiffs says the case turns on a woman's right to make an informed decision regarding her pregnancy. Absent the right information, he says, no such decision is possible. Neither the physician's attorney nor the Kansas Attorney General's Office — which will argue in behalf of the state — would comment on the pending litigation.

$10 Million Award When MRI Causes Permanent Brain Damage

A Pennsylvania jury has awarded $10.83 million to a man who sustained brain damage after undergoing an MRI, a story in the Altoona Mirror points out.

In 2016, Christopher Carey Miller, who suffered from persistent back pain, went to Tyrone Hospital, in Tyrone, Pennsylvania, for an MRI. During the procedure, the then 41-year-old Miller experienced an allergic reaction to gadolinium, which is used to enhance MRI images.

At trial, the MRI technologist testified that, after recognizing Miller's distress, she rushed to the room's control center to activate the emergency alarm and then exited to the hallway to call for help.

Her call summoned the supervising radiologist, who in turn notified the emergency department (ED) medical director, who directed that Miller be brought to the ED. There he was administered ephinephrine, but he had already gone into cardiac arrest, resulting in brain damage that left him with the mental acuity of a young child.

The attorney for the defense argued that Tyrone Hospital's personnel had noticed and responded to the emergency and had "made medical decisions in Miller's best interest."

The plaintiff's attorney and his co-counsel, however, pointed to deficiencies in that response, including the absence of both an alarm and an emergency drug box in the MRI room itself.

The jury found the plaintiff's claims persuasive. In making its $10.83 million award, more than half of which will go to Miller's future medical expenses and constant supervision, it assigned 75% of the negligence to Tyrone Hospital and 25% to Biggs, the supervising radiologist.

The award is reportedly the largest in Blair County, Pennsylvania, history.

Wayne Guglielmo is an independent journalist in Mahwah, New Jersey.

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