This month we look at a case which may have a big impact on caps on damages in medical malpractice cases. Many states, currently over half, have passed some form of law limiting the amount of money a medical malpractice plaintiff can receive after a successful lawsuit. Most of these states place a cap on noneconomic damages only, which includes compensation for things like pain and suffering. In 1975, California became the first state to institute a cap on noneconomic damages in malpractice cases. This month’s case takes place in California.

The patient, Mr K, was being treated by a urologist, Dr B, for a 1cm mass on his scrotum which had grown over the past 3 months. Dr B recommended removing the mass and having it biopsied.

The patient was anxious about the surgery, but Dr B explained to him that he would only be making a small incision in the scrotum, excising the mass, and then closing the incision. He assured Mr K that the likelihood of success was 90% and that it would be riskier to do nothing and let the mass progress.

Prior to the procedure, Mr K filled out 2 surgical consent forms, both describing the intended procedure as “local excision of a scrotal mass, possible cystoscopy.” One of the consent forms presented by the nurse authorized Mr K’s wife, Mrs K, to make medical decisions on his behalf should he be unable to do so.   

During the surgery, Dr B discovered that the mass was much larger than originally thought and had invaded the patient’s penis. Fearing that it would affect the patient’s urethra, Dr B decided to remove the entire mass, which required removal of significant portions of the patient’s penis. Dr B did not consult with the patient’s wife before doing so. In his notes, he wrote “consideration was given to resecting just a biopsy versus resection of the entire mass, which ultimately was completed.”

Following surgery, the excised tissue was sent to pathology for testing. Pathology concluded the following: “Perineal, benign cystic lymphangioma, and adjacent small nodule showing calcification/ossification. No evidence of atypia or malignancy.”

The patient woke from the anesthesia to find that large portions of his penis had been removed, and that the mass had never been malignant. Mr K and his wife were devastated. In the years that followed, Mr K had numerous follow-up surgeries to correct cosmetic and functional deformities caused by the initial procedure, but he was left with no feeling and permanent impairment. His marriage couldn’t take the strain and ended.

Mr K hired a plaintiff’s attorney and told him the story. The attorney verified that Mr K had given consent to one procedure but had been subjected to another. He also verified that Dr B had not tried to obtain consent from Mrs K, despite her being listed on the form.

The attorney took the case but was confronted with a problem.  In the lawyer’s mind, Mr K was entitled to significant damages for such a horrible injury, but California has a cap on damages for pain and suffering. In a medical malpractice case, he could only recover his economic losses and up to $250,000 for the noneconomic losses. Even if a jury were to award more, it would be reduced to $250,000 by the law. 

Medical battery, however, was not subject to the restrictions on damages. The attorney sued for both medical negligence and medical battery.