If you are having a hard time contemplating how “unauthorized penis surgery” can happen, you are not alone. I had the same reaction when I first saw the headline about this case.
But as explained below, unauthorized penis surgery is something that actually happened to a man in California and he got a malpractice award of $9 million.
Before getting into the details of the case, it is worth noting here that California caps damages for pain & suffering in malpractice cases at $250,000. This is one of the strictest caps on damages in the entire country, but it didn’t prevent the plaintiff in this case from getting a big award for what happened to this penis.
The plaintiff in this case was a 41-year-old southern California man who was divorced and sexually active. After a routine physical exam, his doctors discovered a suspicious mass on his scrotum. He went to Loma Linda University Medical Center to have a simple exploratory surgical procedure done. The purpose of the surgery was to remove the mass in his scrotum and get a pathology review to determine if it was cancerous.
The plaintiff was put under general anesthesia for the procedure. When the surgeon opened his scrotum during the operation, it was discovered that the mass was much larger than they initially thought and had grown into the plaintiff’s penis. Visual observation of the mass indicated that it might be a cancerous tumor. Even if it were not malignant, however, in the surgeon’s view it was likely that the mass would continue to grow.
At this point, the surgeon had to decide whether to just remove the part of the mass in the scrotum or whether to go ahead and extend the surgery into the penis and remove the entire mass. Extension of surgery into the penis to remove the entire mass could possibly leave the plaintiff impotent for the rest of his life. The plaintiff was not awake to obtain his consent. His ex-wife was listed as his designated healthcare proxy and she was at the hospital during the surgery. However, the surgeon decided to go ahead and extend the surgery into the penis to remove the entire mass. No effort was made to obtain consent from the ex-wife in the waiting room.
The mass that was removed was quite large (over 8 cm long). The surgeon’s suspicious about its malignancy turned out to be wrong, however. The pathology review determined that it was not cancer.
After the procedure, the plaintiff developed a post-surgical infection and had to undergo emergency surgery. When he finally recovered, he was left with chronic pain, difficulty urinating, and impotence. In an effort to correct these problems, the plaintiff underwent 2 reconstructive surgeries on his penis. This helped alleviate some pain but did nothing to fix his permanent impotence.
Malpractice Claims for Unwanted Penis Surgery
The plaintiff eventually filed a medical malpractice lawsuit against the surgeon and hospital for the unwanted operation on his penis. The malpractice suit asserted claims for both medical negligence and battery. The tort of battery applies when there is an “unwanted touching” that causes injury. Battery is a common claim in cases involving surgery or medical procedures performed without the consent of the patient (often referred to as “informed consent” cases).
The case went to trial in 2018 and the jury ended up awarding $9,000,000 in total damages. This included $4 million for past economic damages and $5 million for future economic damages. The amount of damages awarded was eye-popping, considering the plaintiff documented less than $25,000 in past economic damages.
The defendants appealed arguing that the $9 million dollar verdict was invalid because it clearly exceeded California’s $250,000 cap on pain & suffering damages set forth in § 3333.2(a) of the California Medical Injury Compensation Reform Act (“MIRCA”). The California intermediate appellate court rejected this argument.
In its opinion, the appellate court explained that California distinguishes between 2 categories of medical battery claims. One is subject to the MIRCA damages cap and the other is not. Medical battery is considered a valid intentional tort in situations where the doctor “obtains the patient’s consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff gave no consent.” Burchell v. Faulty Phys. (Cal. App. 2020). If the surgeon is performing an operation that the plaintiff has consented to, but then has to perform additional procedures in response to an emergency complication, then the medical battery claim is treated like medical negligence and the MIRCA cap applies.
The appellate court found that the medical batter claim for the surgery on the plaintiff’s penis in this case clearly fell into the first category of valid intentional tort claims that are NOT subject to MIRCA. The plaintiff only consented to surgery on his scrotum. He did NOT consent to any surgery involving his penis. Extending the surgery to his penis was a substantially different procedure than what he consented to and it was not a necessary response to an emergency complication. The surgeon could have waited to obtain consent and then gone back and removed the mass from the penis in a second procedure.
Contact Miller & Zois About Surgical Malpractice
The Maryland medical malpractice lawyers at our firm have extensive experience with surgical malpractice and informed consent cases. If you were injured by a negligent or unwanted surgical procedure, let us know about your case. We will give you our thoughts. There is no cost.