RIVERSIDE, Calif. (Legal Newsline) - A California appeals court on Sept. 10 upheld a multimillion-dollar damage award to a man who was left impotent by surgery on his penis that he never authorized, finding the state’s $250,000 cap on noneconomic damages in medical malpractice cases doesn’t apply to claims of intentional misconduct.
The plaintiff was 41 and sexually active when he went to Loma Linda University for what he said he had been told would be a simple outpatient procedure to remove a small mass in his scrotum for testing. Instead, surgeon Sr. Gary Barker discovered a more extensive mass and proceeded to remove it while the plaintiff was still under anesthesia, without seeking his consent or the consent of his designated proxy, which was his ex-wife.
The mass turned out to be benign, but the surgery left the plaintiff impotent and his penis “deviates to the right side.” Subsequent attempts to install penial implants were only partially successful due to damage to the muscle tissue needed to attach them. The plaintiff complained his current implant slipped backward, so that when inflated “the end of [the]penis droops over the cylinder,” and sex is painful.
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.”
While common in the early days of lawsuits over medical injuries, battery claims are relatively rare now, said Eric Turkewitz, a medical malpractice attorney in New York and author of a widely read blog on personal injury law. One big reason: Insurance generally doesn’t cover intentional torts, increasing risk of winning a hollow victory in court.
“While this may not be an issue for some defendants, such as large corporations, it necessarily removes it as a realistic option for the ‘regular’ cases that fill courthouses and result in most of a state’s case law,” Turkewitz said. “So that makes it rare, in a relative sense.