In Louisville; Kentucky, a major malpractice case has been filed by a man who consented to a circumcision and instead discovered after the surgery that the doctors had amputated his penis. Philip Seaton has sued both the surgeon Dr. John Patterson and anesthesiologist, Dr. Oliver James. This is a recent example of the ongoing debate in torts over the scope of the “emergency rule” and authority of doctors to act without consent. Putting aside the sensational or gruesome elements, the case is highly illustrative of the problems in this area of torts.
Seaton consented to a circumcision, but the doctors claim that they found cancer and decided to proceed in the best interests of the patient. Not only did Seaton object that he should have been asked for such consent but he objects that he did not consent to the use of general anesthesia. Not surprisingly, he is seeking punitive damages.
This could make for an interesting case on the scope of the emergency rule, though I would bet on Seaton. Under the emergency rule, doctors can act without consent to stabilize a patient or to protect him from imminent serious injury or death if he lacks the capacity or consciousness to make the decision. However, the rule is limited. If a patient can be stabilized without serious risk, he should be given the opportunity to decide the matter for himself. In this case, it is unclear why such steps were not taken. The risk of putting someone under anesthesia twice is generally not sufficient to negate consent.
One of the best known cases in this area is Mohr v.Williams, a 1905 case out of Minnesota. In that case, a surgeon and a family doctor elected to do surgery on the left ear of Ms. Mohr, who gave consent for surgery on her right ear. The doctors had not fully inspected the other ear until the surgery and decided that it was in worse shape. The Court held that, even if the operation were successful, it still constitutes battery since they lacked consent for that surgery.
Seaton clearly has the advantage here and the issue will come down to the waiver form that he signed before the surgery. Those forms are occasionally set aside by courts, but often contain sweeping consent for doctors. Even if the forms are not a defense, the doctors may claim consent in there conferral with the patient.
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This incident rhymes with a joke I heard several years ago.
A guy walked into the outpatient surgery clinic and said to the nurse on duty “I want to be castrated.” The nurse responded “Are you absolutely sure?” “Yup!” Whereupon she filled in the consent form and then queried him one last time as she asked and received for his signature. She then took him into the operating room and the procedure was performed. It took only about ten minutes, and after waiting another half hour or so to make sure everything was OK he went back to the waiting room on the way out outside and then home. As he passed the reception desk he overheard a newly arriving customer saying to the nurse “I’d like to have a circumcision.” On his way out the door the patient was heard to mutter “Damn! That’s the word I was trying to think of!”
Isn’t there something to be said about “scope of consent” here?
As a man i think i can safely speak for all men when i say “”.
I dont know if there is an old axiom about this, but there otter, and it should say “Knives and penises, touch, they should never. ever. ever never ever.”
This sounds like the doctors made a horrible mistake and are trying to save their back ends utilizing this “emergency rule” nonsense. I guess the court will have to have the amputated tissue inspected to determine if it indeed was cancerous. Beyond that, all I can say is Ouch!