Medical Expediency Is Still No Excuse For Medical Battery
posted on July 1st, 2005 in Genital Injury by clintIn 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.