There is an interesting torts case of consent out of Shelbyville, Kentucky where truck driver Phillip Seaton, 64, sued after a doctor amputated part of his penis in what was supposed to be a simple circumcision operation. Dr. John Patterson insists that, upon examination, he found the penis to be infused with cancer and took the step in the best interests of the patient. A jury agreed and ruled for Patterson.
Generally, courts narrow limit the use of the emergency rule where doctors can forego getting the consent of the patient. It does not matter that such an unconsented to operation may have worked to the benefit of the patient. This was the case in Mohr v. Williams, 104 N.W. 12 (Minn. 1905), where Williams, an ear specialist, agreed to perform a surgery on Mohr’s right ear. However, in surgery, Williams decided that Mohr’s left ear was in worse shape and decided to switch ears. The operation was successful but the operation was not necessitated as a life threatening situation. In other words, Williams could have waited and secured the consent from Mohr. The court ruled in favor of Mohr and found that the operation constitutes battery since there was no evidence that the condition of the plaintiff’s left ear presented a serious or life threatening situation.
In this case, the doctor decided to amputate less than an inch of the penis in 2007 and the remainder of the penis was removed later by another doctor later.
The defense argued that Seaton’s life was in endanger and fast action was necessary. I am a bit skeptical about that claim. It is not clear that waiting a day or so would materially alter the situation, but then again I did not hear the expert testimony. The psychological stress of being presented with the amputation probably magnified the trauma for Seaton — as opposed to allowing him to seek a second opinion or at least make such a decision himself. Patterson’s lawyer insisted that his client stopped the cancer from spreading. Yet, that would indicate that doctors could act in most cases when they spot cancer in taking unilateral action of this kind. It comes down to the expert testimony which appears to have been somewhat limited in this just three-day trial.
News reports indicate that experts were divided on Patterson’s claim. Dr. David Benson testified that he thought that Patterson was wrong to take the action while Dr. David Paulson, a retired urologist and former chairman of urology at Duke University, agreed with Patterson. Benson testified that “The accepted standard of care would have been to do a dorsal slit, which he did, then biopsy it, and discuss it with the patient’s family.” That is more in line with Mohr and its underlying standard.
Seaton and his wife were seeking $16 million in damages for “loss of service, love and affection.”
One of the more interesting facts in the case was that Seaton has very limited reading skills and yet signed a fairly complex consent form. That consent form gave Patterson broad authority to deal with unforeseen circumstances during the surgery. I have been a long critic of these consent forms which seem to me to be over broad and little understood for patients.
What is also interesting is the fact that Seaton sought medical advice due to a burning sensation during urination. His penis was examined first by a GP and then referred to Patterson, who recommended a circumcision. No one flagged the possibility of cancer.
Finally, when people criticize the jury system as pro-plaintiff, they often do so with little actual exposure to jury verdicts. I often see jurors rejecting relatively strong claims and ruling for defendants. This is one such example. Even when presented with a horrific injury, the jury still transcended the initial shock to find for the defendant.
Source: HuffPo
Kudos: Holly Trogdon
Anon,I don’t want to bore the rest of this thread posters with all the ins and outs but you have jumped to conclusions that are not backed by the facts.
The jury could find for me, disbelieveing the doc, given his perjurious statements. I am glad it was not because I preserved record and Pa Superior Court sent it back to lower court, calling the doctor’s testimony perjurious. My attorney for appeal forced me to settle for bupkis (but I have written about that in other threads.)
I had an attorney from the start.(If you go to my blog, The pained life, 30 years and counting, I have written about it in a number of posts, in the last 2 -3 weeks, summarizing the case and why Pro Se, etc. (I followed the rule of law, was told by defense attorney one of best openings he had heard.)
As I said I rested because of the change in lie which was related to something I told opposing counsel, thinking I was being honorable – offered to drop one defendent if testified at trial to his depo testimony that facial paralysis was unknown to him, i.e. Dr. Jannetta never taught him about it btw surgery called the “Jannetta Procedure”. That was when Dr. Jannetta changed his testimony, so it would jibe with the resident’s.
My proof was related to his depo testimony where he outright lied saying major complication. Had proof of defensive test that showed he knew was a risk and had he said unknow at depo I would have gone on that tack instead of the one for which I was prepared.
Your supposition that had proof problems or I was uncontrollable as a client is totally off base. All reg were met, another judge told me case, as was and with Pro Se, was worth almost 3 times what lawyer forced me to accept.
At more than one hospital where I live the consent form when you go for a just a blood test or films reads that you consent to surgery, anaesthesia, essentially anything they might want to do if they feel the need arises, without having to ask for specific permission. First thing to do, cross out all of that ‘I give premission for …’ language and replace with ‘I give permission for the x-rays (blood tests) only for which I have presented my prescription.” They don’t seem to have a problem with that. Other problem is people don’t realize, for instance, if it says doc so and so/associates, residents can be operating. Lots of unknowns in the language.
A man whose penis was lost in a car accident was told he could have a transplant – a small penis for $10000 or a large penis for $15000. He turned to his wife and asked what she thought.
The wife said, “For that kind of money, I’d rather remodel the kitchen.”
A standard release would contain language that included treating complications or other eventualities should the need arise. That sometimes happens in surgery, and the release will have a broad general provision that allows for expansion of the procedure into other areas should the need arise.
All those things are supposed to be explained by whichever hospital staff gets the patient to sign the release. Every time I ever had a test or surgical procedure run, the staff had the patter down perfectly. However, one tends to not pay much attention, sort of like when the flight attendant tells you how the seat belt and oxygen systems work. Just sign on the damn line and lets get the show on the road, is the attitude of the average patient.
This case sounds like a mess from the start. I just can’t imagine any doctor amputating any member without discussing that possibility, in detail, prior to the operation.
That is the function of the Judge. He decides the law and the Jury decides the Facts…You pretty much got your answer from the Juror…As a Matter of law…could a Jury come to any other conclusion based upon the testimony (proofs) presented at trial…You had a Doc a lying Doc at that…You presented his testimony at trial and them…probably presented it to the Judge…as he is lying…what should have been done is obtained an attorney…rule no 1….if an attorney would not take a case of med mal on a contingency…rule no 2…if you can’t get an attorney, then go to law school yourself…if you can’t then remember that you held to the same standard as an attorney…and must know the rules of evidence and the law…..
You either had proof problems or were uncontrollable as a client….For any tort (a personal wrong)to be won….You need to first comply with the states notice requirement if required regarding the act complained of, damaged and have another Doc rat out another Doc…before you can even proceed…Then, you have to have have it be a civil wrong…to the person…causation and damages….
No, he tossed it as soon as I said I rested. Never had a chance to get to the jury.
That is correct…It was his testimony that was conflicted…did it get to the jury or did the judge dismiss it..
No. He said what he did then the judge broke for lunch. I thght about it and when came back I rested my case. At that point I had presented my personal testimony, he told me “I promise you your face cannot be paralyzed” and then his statements, that he had told me “major and common…”, and that he had not told me, “unknown”. (He was not conflicted, it was his testimony that conflicted with itself.)
So after you had presented his evidence that he was conflicted…it never made it to the Jury…the Defense asked for a Directed Verdict….You had no proofs other than his mistruths…is that correct…
“One of the more interesting facts in the case was that Seaton has very limited reading skills and yet signed a fairly complex consent form. That consent form gave Patterson broad authority to deal with unforeseen circumstances during the surgery.”
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If a contract or consent is too bloody twisted and difficult to comprehend…how can it prove enforceable? These ridiculously complicated forms make the courts look like bought mistresses….
This was the first day of trial so I had presented not much more than his testimony: the court had only that to go on.
When I asked her the question – I meant did she believe my testimony or the doctor’s. I was surprised when his answers (at depo vs. court) were diametrically opposed thst anyone could believe the doctor.
Carol,
Can you explain that in a little more detail..
Unprepared for the complete change in testimony I rested and was, of course, nonsuited. I asked a juror, “Who did you believe?”
My understanding is that approximately 80% lose their med mal cases regardless of strength of proof. I was Pro Se for a while in my med mal case. I proved perjury by the doctor defendant. He changed his testimony at trial, from 2 depositions: “facial paralysis is a major and common complication” to “unknown” at trial. The deposition testimony was presented so both versions were made known to the jury. Unprepared for the complete change in testimony I rested and was, of course, nonsuited. I asked a juror, “Who did you believe?” She looked at me and said “The doctor.” I wanted to ask her “Which time?” but decided it was not worth the effort. Jurors want to believe the docs no matter what because if the doc being sued could do that ‘bad thing’ then maybe too so could the doc they see.