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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