Kelly on Malpractice

Medical negligence and products liability cases are difficult to prosecute. Yet, there is a small subset of these cases where the damages are so devastating, so sensitive, yet so private, that the prosecution takes on a completely different style. It is the genital burn case. These are difficult cases that demand your full attention and skill to get full justice for your client. You must boldly use witnesses to maximize what is almost always a seven figure case. After all, what are your genitals worth? Think about it.

Suppose a gynecologist starts using a medical device to treat women who have too much menstrual bleeding and cramping. The doctor uses the device to inject boiling water into the cervix. The doctor uses this boiling water to treat the patient’s bleeding problem by killing the lining of the uterus. The doctor’s only job is to hold the instrument steady. The doctor enters the surgery room. The doctor sees the machine already set up and ready for use. The doctor sees the patient’s legs in stirrups. The patient is under general anesthesia. The doctor takes charge of the instrument. The doctor then puts the instrument into the patient’s uterus. The device injects boiling water into the patient’s uterus. The doctor is looking around inside the uterus. There has been a bad leak during surgery. The doctor has burned the patient’s genital area. The patient has third degree burns to skin around her vagina, anus, and buttocks. The burns are infected and glistening. She needs skin grafting surgery. She eventually sees a plastic surgeon. Suppose a urologist is consulted to check a patient for genital warts on his penis. The customary practice to locate small genital warts is to bath the penis in acetic acid (vinegar), which blanches the warts and makes them easy to view. The doctor asks the nurse to get the acetic acid. She opens the medicine cabinet and pulls out tri-chloracetic acid instead. This is akin to brick wash. The doctor takes the bottle but never looks to see if the nurse retrieved the right stuff. He is wearing latex gloves. He soaks the gauze in the tri-chloracetic acid and then swaddles the patient’s penis. Immediately, the patient jumps off of the table. The doctor describes the incident as seeing bacon sizzling. The patient has second degree burns to the shaft of his penis. Fortunately, he does not need surgical repair. However, he has permanent disfigurement and experiences pain during intercourse.

How do you get full damages and yet handle the issue carefully with jury? You must cover the matter of “privates” with the jury thoroughly during voir dire. You must delve into the subject of sexual intercourse thoroughly during voir dire. These cases are rarely about special damages. Each juror must be examined about non-economic damages. In sum, be bold during voir dire by ratcheting up the facts to a fever pitch. Younger jurors are the target demographic. Your client is the best witness. The embarrassment and humiliation of describing this injury from the witness stand is compensable in and of itself. We find this testimony from the client to be compelling. Spouses are very helpful in describing the break in consortium. We suggest that you retain a psychiatrist early for your client. The scars are not just skin deep; they are emotional as well. Psychiatrists can do an excellent job describing the mental pain and suffering your client will endure for a lifetime. Of course, the pictures are by far the most important evidence of all. Have a professional take them. The pictures verify the unbelievable. Save them for the last in your case-in-chief. Genital burn cases with scars are never worth less than seven figures. Treat them that way.

Medical negligence and products liability cases are difficult to prosecute. Then, there are the rare cases where the damages are so devastating, so sensitive, yet so private, that the prosecution takes on a completely style. Genital burn cases is such a case. You must boldly use witnesses to maximize what is always a seven figure case. Suppose a gynecologist starts using a medical device to treat women who have too much menstrual bleeding and cramping. The doctor uses the device to inject boiling water into the cervix. The doctor uses this boiling water to treat the patient’s bleeding problem by killing the lining of the uterus. The doctor’s only job is to hold the instrument steady.

The doctor enters the surgery room. The doctor sees the machine already set up and ready for use. The doctor sees the patient’s legs in stirrups. The patient is under general anesthesia. The doctor takes charge of the instrument. The doctor then puts the instrument into the patient’s uterus. The device injects boiling water into the patient’s uterus. The doctor is looking around inside the uterus. There has been a bad leak during surgery. The doctor has burned the patient’s genital area. The patient has third degree burns to skin around her vagina, anus, and buttocks. The burns are infected and glistening. She needs skin grafting surgery. She eventually sees a plastic surgeon.

Suppose a urologist is consulted to check a patient for genital warts on his penis. The customary practice to locate small genital warts is to bath the penis in acetic acid (vinegar), which blanches the warts and makes them easy to view. The doctor asks the nurse to get the acetic acid. She opens the medicine cabinet and pulls out tri-chloracetic acid instead. This is akin to brick wash. The doctor takes the bottle but never looks to see if the nurse retrieved the right stuff. He is wearing latex gloves. He soaks the gauze in the tri-chloracetic acid and then swaddles the patient’s penis. Immediately, the patient jumps off of the table. The doctor describes the incident as seeing bacon sizzling. The patient has second degree burns to the shaft of his penis. Fortunately, he does not need surgical repair. However, he has permanent disfigurement and experiences pain during intercourse.

How do you get full damages and yet handle the issue carefully with jury. You must cover the matter of “privates” with the jury thoroughly during voir dire. You must delve into the subject of sexual intercourse thoroughly during voir dire. These cases are rarely about special damages. Each juror must be examined about non-economic damages. In sum, be bold during voir dire by ratcheting up the facts to a fever pitch. Younger jurors are the target demographic. Your client is the best witness. The embarrassment and humiliation of describing this injury from the witness stand is compensable in and of itself. We find this testimony from the client to be compelling. Spouses are very helpful in describing the break in consortium. We suggest that you retain a psychiatrist early for your client. The scars are not just skin deep; they are emotional as well. Psychiatrists can do an excellent job describing the mental pain and suffering your client will endure for a lifetime. Of course, the pictures are by far the most important evidence of all. Have a professional take them. The pictures verify the unbelievable. Save them for the last in your case-in-chief. Genital burn cases with scars are never worth less than seven figures. Treat them that way.

In this fact-rich case, plaintiff sued defendant for medical battery. Massingale v. Lee, 2005 WL 990557 (Tenn.Ct.App.). During surgery to repair a bilateral hernia, the defendant went on to remove the plaintiff’s left testicle. Post-surgery, plaintiff developed a recurrent hernia. He underwent several subsequent surgeries to reduce swelling of his scrotum. Plaintiff alleged the defendant was liable for medical battery because he was not aware the testicle would be removed, did not consent to such removal, and his condition did not constitute an emergency situation necessitating the removal of his testicle. Plaintiff even asked the defendant prior to the surgery if it would, “affect me in any way in my manhood or anything happen down there that I should need to know about.” The defendant allegedly told plaintiff it was minor surgery so he didn’t have anything to worry about.

Plaintiff signed a consent form prior to surgery, which stated:

I consent to the performance of operations and procedures in addition to or different from those contemplated, “whether or not arising from presently unforeseen conditions,” which the above named physician or his associates or assistants may consider necessary or advisable in the course of the operation.

Plaintiff stated that after the surgery, “I went home, and it was like a big basketball between my legs.” Thereafter, the plaintiff found out that his left testicle had been removed. The defendant testified he did not inform the plaintiff prior to surgery that he might lose a testicle because that was not an anticipated risk of the surgery. The defendant even admitted that the removal of plaintiff’s testicle was not an emergency situation; rather the defendant stated “he did not believe it was serious to remove one testicle.” How arrogant and cavalier was that statement? The defendant stated that in most patients, when one testicle is removed the other takes over and compensates. He purportedly wanted to spare the plaintiff additional surgery due to unusual anatomy of the plaintiff’s groin.

The trial court dismissed the medical battery claim based on the “unforeseen condition” language found in the consent form. According to the Court of Appeals, if all that was presented to the jury on the medical battery claim was the signed consent form, then the medical battery issue would be less complicated. However, the consent form was not the only evidence on the medical battery issue. Plaintiff specifically asked defendant prior to the surgery if the surgery would “affect me in any way in my manhood or anything happen down there that I should need to know about.” Given this testimony and the doctor’s response, the Court of Appeals reversed the trial court’s dismissal of the medical battery claim. Reasonable minds could disagree as to whether the plaintiff either was aware defendant was going to perform this procedure or whether the plaintiff authorized performance of this procedure.

For some inexplicable reason, it seems that claims of medical battery are on the rise. Doctors must respect the patient’s right to choose the scope of surgery. The cost of doctors acting like gods—a lawsuit. A patient’s sense of his own manhood—priceless.