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Man Wins $$Award for Unauthorized Penis Surgery; More

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, Baker 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.