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.
Kudos: Holly Trogdon