Headline of the Day: Kentucky Jury Rules for Doctor in Penis Amputation Suit
Two words you just don’t want to see together are “penis” and “amputation.” But uncross those legs and relax, guys — it was only partial:
A Kentucky doctor acted properly when he amputated part of a truck driver’s penis after finding cancer during what was expected to have been a routine circumcision surgery in 2007, a jury found on Wednesday.
. . . .
The jury of six men and six women ruled unanimously against a claim that Patterson failed to exercise proper care. They also ruled 10-2 against a claim that Seaton hadn’t consented to the amputation.
. . . .
A key question in the case was whether Patterson should have awakened Seaton and asked for permission to make the amputation. Doctors testifying as medical experts on both sides disagreed on whether an immediate amputation was necessary.
Next time you complain about jury service, remember this story.
An excuses for Insurance Covered penile enhancement.
S. Carter aka J-Z (786e37) — 8/25/2011 @ 2:39 pmIt is unfortunate that the hospital and anasthesiologist settled prematurely, for what appears to be a quite defensible position.
This strikes me as one of those”a tort if you do, a tort if you don’t” things.
Obviously, this had to be quite traumatic.
JD (b98cae) — 8/25/2011 @ 2:52 pmI’m sure he could have been cured with Laetrile.
Another Drew - Restore the Republic / Obama Sucks! (8ef02d) — 8/25/2011 @ 3:03 pmSo, last week we were out on a training ride, a medium spin in the hills in southern IN. We are cruising along, enjoying the scenery and some giants climbs, when we finally get a nice long low-30’s hill. Flying down this hill, I am not paying close attention, and fail to notice the rapidly approaching railroad tracks. The marbles get blasted up by my spleen, and don’t descend for a couple days.
JD (29e1cd) — 8/25/2011 @ 3:20 pmTried a week-long jury trial about a penis once, and in a rural Texas town.
It actually made me very, very proud of the maturity level of my fellow Texans. I know that there were jokes told and snickers exchanged at one point or another by everyone connected to the case. Indeed, I explained during voir dire that I believed that to be absolutely inevitable, given the subject matter of the case.
But during the trial proceedings, it was all business. From everyone.
I would not have predicted that, and I found it very gratifying indeed.
Beldar (8e755e) — 8/25/2011 @ 3:21 pmheh
EricPWJohnson (c5f1fc) — 8/25/2011 @ 3:28 pmAlso from the report Patterico linked:
I’m not licensed in Kentucky, but I would be very, very surprised if lawyer George’s assertion is a correct statement of the governing law.
I would be stunned if this doctor’s standard informed consent forms for surgery did not explicitly address the possibility of deviations from the plan based on what the surgeon finds. That’s not to say that one writes a blank check to the surgeon to, say, decide that you also need a nose job while you’re under anesthetic for your vasectomy. But generally such forms ask the patient to consider, before the procedure, the question of how much judgment to commit to the surgeon; and indeed such forms are generally drafted, intentionally, to confer quite a bit of discretion.
Unless you want to risk your health and raise your costs by requiring your doctor to vigorously practice “defensive medicine,” you want to sign that form after reading it. You want your doctor to have considerable discretion, and for him to exercise his best medical judgment as the circumstances become more clear. To free him to do so, though, the trade-off is that you have to agree not to second-guess some decisions he makes on your behalf in the exercise of the discretion you’ve given him. And if you’re not comfortable with that, you need to find another doctor.
I’d certainly want to see that consent form before agreeing with lawyer’s George’s description of the contractual or legal restrictions on the surgeon’s discretion to make and act upon decisions of this sort. I hope he didn’t mislead his client the way this quote makes it appear that he tried to mislead the press.
Beldar (8e755e) — 8/25/2011 @ 3:42 pmJD– TMI
elissa (c01b9b) — 8/25/2011 @ 3:53 pmIt would suck to have cancer down there. It is not as if people can grow penises (penii?) on the backs of mice…yet.
Michael Ejercito (64388b) — 8/25/2011 @ 4:19 pmBeldar:
You’re just going to throw that out there and not tell us the story?
Patterico (c25b64) — 8/25/2011 @ 4:24 pmOne has to do some reading between the lines with the info given, including taking into account that usually newspapers make a mess of technical details, including in medicine.
First, the “trees”
I’m not sure what a “routine” circumcision is. It seems the foreskin must have adhered to the penis and surgery was planned to lyse the adhesions and debride an expected fungal infection. In the mist of the operation it is evident the adhesion was caused by cancer. I assume the surgeon had two choices at that point: 1) to do nothing more except put some antibiotic ointment and gauze over it and wake him up, or 2) a conservative resection of the affected area, which would deal with the presenting problem of the adhered foreskin.
One should also remember that in a technically uncomplicated surgery, the biggest risk of the procedure is undergoing general anesthesia. So, if the surgeon essentially stopped mid-surgery, he would be forcing the patient to undergo risk of general anesthesia again.
I assume the anesthesiologist and hospital and their malpractice carriers offered some relatively small token settlement to make the case go away for them, while they and the plaintiff all figured the surgeon was the one primarily responsible.
Second, the “forest”
MD in Philly (3d3f72) — 8/25/2011 @ 4:33 pmYou wake up from the operation and you find out there was cancer. Yes, you’re shocked and upset, and yes, maybe the case can be made that technically not all was done “according to the book”. But unless there was an alternative treatment that did not involve surgery why take it out on the doctor, other than help make a lawyer rich(er) and foolishly try to make yourself “whole” by getting money? You might distract yourself with the money, but it doesn’t undo the fact you had cancer and are now free of it.
Dude I did not need to see an amputated weiner.
DohBiden (d54602) — 8/25/2011 @ 4:33 pmI am very skeptical of the claim that there was some kind of penis emergency that required immediate, do not pass go amputation.
I mean i guess i differentiate in standards between amputating, say, part of my pinky v. part of my penis. call me crazy that way.
So i would require very strong proof that the doctor really couldn’t wait for him to wake up and ask permission. i think the doctor just felt he knew what was best for the patient and didn’t want to bother with the hassle.
Aaron Worthing (73a7ea) — 8/25/2011 @ 4:36 pmI’m kind of bummed over the unfairness of it all. The last time I was on a jury it was a case about a dipstick yoot under the influence of mary jane who broadsided an arrogant CEO guy in a Porsche. They both lived in the same upscale neighborhood. (Neither made very sympathetic witnesses.)
elissa (c01b9b) — 8/25/2011 @ 4:38 pmLooking at the comments at the linked article, and at Aaron’s comment above, as well as mine, it seems we readily jump to champion our fundamental assumptions.
No, it was not a “penile emergency”. On the other hand, do you want the surgeon to come into your room and say, “I’m afraid we didn’t complete the surgery because there was actually cancer there, and we didn’t talk about removing cancerous tissue. If you look under the bandage you’ll see the cancer that was hiding under the foreskin flapping in the breeze and waving hello. Now, I can’t imagine anyone choosing to let that cancer sit there and grow, but I thought it was important to give you the choice. Besides, my malpractice carrier prefered it this way, and I get to bill for 2 different operations as well, so everybody’s happy except the plaintiff lawyer and you, because it’s a pain lying there in bed awaiting the next operation”
Yes, hyperbole for effect.
MD in Philly (3d3f72) — 8/25/2011 @ 4:47 pm@ Patterico (#10): You asked, “You’re just going to throw that out there and not tell us the story?”
You’re correct.
Beldar (8e755e) — 8/25/2011 @ 4:52 pmBut wait, there’s more (from, of course, the Daily News):
I’d still like to see the specific form, but again, in general such forms are drafted to disclose the scariest possibilities they can, and to nevertheless grant a great deal of discretion.
Moreover, I’m curious whether the patient told the doctor or his staff that he (the patient) couldn’t read, and if so, whether the patient asked anyone to read it to him aloud and was denied that opportunity. Illiteracy isn’t shameworthy, but neither is it a license to escape all consequences of the written word.
Beldar (8e755e) — 8/25/2011 @ 5:11 pmAmen, MD. That same lawyer would have raised a stink about not treating the cancer, and the cost of a second surgery, and the associated risks, had the doctor not done something.
JD (306f5d) — 8/25/2011 @ 5:12 pmAmputated Wiener is a New York punk band
EricPWJohnson (8a4ca7) — 8/25/2011 @ 5:19 pmYou can also look at this as a question of damages: What damages were caused by the doctor’s decision — as distinct from the tumor that was already present when the patient walked in?
Don’t confuse this with an accidental amputation (“whoops, meant to do the right leg”) case. There was no circumstance in which this gentleman was going to continue to have the healthy penis to which he’d become understandably accustomed during his entire life (including prenatally).
Because of the doc’s decision to proceed, this gentleman lost, at most, a chance to make a decision in which the alternatives were (a) losing some portion, or perhaps all, of his penis, or (b) going untreated. I’m not a doctor, but I’m pretty sure the medical testimony would be near-unanimous that “going untreated” would inexorably lead to worse results, quite possibly including fatal results.
So it certainly would have been within the province of the jury to write down “zero” in the damages blank even if they thought there was some negligence or failure to secure adequately informed consent.
Beldar (8e755e) — 8/25/2011 @ 5:25 pmBeldar, I appreciate your last point, that even if there was an error in adequate informed consent, if in fact there was no damage, there would be no reason for payment. I guess this is the systems way of dealing with “the forest” as I mentioned above.
I don’t know how much of what I’ve heard about consent forms is urban legend or truth, but there is the concept that in spite of the form, the patient’s attorney can always claim, “but he really didn’t understand.”
FWIW, radiation therapy would not be without risk, for it can cause fibrosis and painful deformities as well…
MD in Philly (3d3f72) — 8/25/2011 @ 5:34 pmI woke up this morning with a bad hangover and my penis was missing again
happyfeet (3c92a1) — 8/25/2011 @ 5:55 pmWhere is spurty when you really need him to hijack a thread for its own good? This one’s interesting but real oogy and I’m not even a guy.
elissa (c01b9b) — 8/25/2011 @ 6:05 pmWell this was interesting.
DohBiden (d54602) — 8/25/2011 @ 6:45 pmIn an article I read:
–He initialed the consent form which was read to him as he was illiterate. I guess it comes down to if there was a witness.
–The Surgeon was unable to insert a catheter so stopping and waking the patient would have been dangerous.
I have trouble believing good faith or credibility here. The wife claimed and was compensated for loss of her husband’s “attention” but they had been separated for months. Sounds like legal lottery to me.
Machinist (b6f7da) — 8/25/2011 @ 7:06 pmSorry Elissa.
Machinist (b6f7da) — 8/25/2011 @ 7:07 pmMD
> On the other hand, do you want the surgeon to come into your room and say, “I’m afraid we didn’t complete the surgery because there was actually cancer there, and we didn’t talk about removing cancerous tissue.
Since you would have to remove my wang to do it, yeah, I would want to hear exactly that.
Beldar
> I’m pretty sure the medical testimony would be near-unanimous that “going untreated” would inexorably lead to worse results, quite possibly including fatal results.
Are you telling me that there is no guy who would prefer to die rather than lose that part of the body? not even one?
Seriously, barring an emergency, I want a doctor to ask before removing my favorite body part.
Aaron Worthing (73a7ea) — 8/25/2011 @ 7:18 pmAaron,
Machinist (b6f7da) — 8/25/2011 @ 7:29 pmHe was 67 years old and having severe enough problems to seek this drastic measure in the first place. Do you really think it was his favorite part, so much so that he would prefer to die in order to keep it a bit longer. That assumes you don’t die from the infection from the Doctor not being able to insert the tube before closing you up.
I guess I should ask what constitutes an emergency. How many hours or days could you be expected to live before it is not an emergency?
Machinist (b6f7da) — 8/25/2011 @ 7:31 pmThis guy would shave sued the doc for not treating the cancer in a timely manner had he not done so.
JD (318f81) — 8/25/2011 @ 7:32 pmNo reasonable person would trade his life for his penis, and “reasonable person” is the standard, Aaron.
Beldar (8e755e) — 8/25/2011 @ 7:35 pmAlso,
Machinist (b6f7da) — 8/25/2011 @ 7:40 pmThis surgeon only removed part of the member. The rest was removed later by a different Doctor, so it would seem when he did have a chance to decide, he felt there was sufficient reason to remove most of the member. I think that weakens the argument that he would have preferred death to dismemberment (sorry).
Well, given different circumstances, you would be suing me, Aaron.
Warning: graphic discussion
Going back to Beldar’s point on damages- assuming the foreskin was retracted and the cancer left, what you have is a penis with a patch that looks probably like a cross between a thick scar and a small cauliflower. In all likelihood this is a cancer related to HPV infection as cervical cancer in women, so having sex with him is giving a good opportunity to contract a cancer-causing strain of HPV.
As the wife of one of my patients with HIV and a bad case of herpes said, “That thing’s not getting anywhere near me.”
The choice is not to have or have not a normal one, it is to have one disfigured with cancer resulting from HPV infection, or to have one disfigured because part was surgically removed. Whatever the doctor chose, the patient was not going to wake up from surgery with normal functioning anatomy. If there was one person who preferred a slow and gruesome death due to spreading penile cancer rather than having a partial resection, I would get a psych consult and a chaplian referral if the patient was interested.
I’ve had patients who were missing part who made it a point of telling the docs it didn’t slow them down a bit. One person made a point of telling this to female med students…
MD in Philly (3d3f72) — 8/25/2011 @ 7:45 pmIrony.
Machinist (b6f7da) — 8/25/2011 @ 7:57 pmHere we have a dedicated penis thread and the dicks are over on the other one.
Also: The issue is not whether you’d “like to be asked.” Of course we’d all rather be consulted about any significant discovery in our medical conditions as soon as possible whenever that’s feasible. If this had been something discovered during a physical exam or on some sort of scan, then sure, everyone would agree that the patient ought to have been consulted and his specific approval obtained.
But that’s not how this happened. So instead, the issue is whether the opportunity to be asked that question — to which every possible answer is awful — is, all by itself, so valuable that it outweighs the medical risks of undergoing another procedure under general anesthesia at age 67.
I know surgeons are doing operations on elderly patients now that would have been thought reckless and inappropriately risky 20 years ago. But this isn’t like being awakened from a light nap to be told that you might have to take another such nap on another day.
So we’re talking about a definite, statistically proven risk that is not insignificant. The doctor knows for a certainty that he is subjecting the patient to that additional, unnecessary risk when every rational patient would choose the treatment he could immediately perform while also minimizing the patient’s total time under anesthesia.
Seriously, what do you tell his family when he dies under the second anesthesia?
Beldar (8e755e) — 8/25/2011 @ 7:57 pmDo you really think it was his favorite part, so much so that he would prefer to die in order to keep it a bit longer.
Favorite or not, it was likely a part he was interested in, particularly because it was already disfigured and not working correctly, which brought him to the MD in the first place.
He wanted to have his problem fixed so he could be normal again. But he wasn’t going to be normal again no matter what the doctor did, so he vented his anger at least in part at the doc, with the help of the lawyer. As JD said, had the doctor not done a resection the patient could have just as easily sued for inadequate treatment and unnecessarily prolonging his suffering.
Apparently machinist read elsewhere that the surgeon was concerned about being able to have urine output with whatever the anatomy was with swelling, etc. If that was the case, the alternative would have been putting in a suprapubic catheter into the bladder. In other words, waking up with a rubber tube sticking out of you somewhere between your belly-button and cancer-disfigured penis.
I think the bottom line is he went in expecting a simple problem with a simple solution, but it was not a simple problem and it did not have a simple solution. That wasn’t the doctor’s fault.
MD in Philly (3d3f72) — 8/25/2011 @ 7:58 pmI don’t want my tombstone to read:
“Well, at least he got to give them the okay to cut off his cancerous penis before he had a cardiac arrest on the operating table the next week.”
Beldar (8e755e) — 8/25/2011 @ 8:01 pmBeldar, #35, C’mon, I already talked about the risk of anesthesia up in #11. I’m going to start thinking you’re not studying my posts with the due diligence they deserve… 😉
MD in Philly (3d3f72) — 8/25/2011 @ 8:03 pm“I’ve had patients who were missing part who made it a point of telling the docs it didn’t slow them down a bit. One person made a point of telling this to female med students…”
MD in Philly – I’ll bet they sell replacement Johnsons in a rainbow assortment of colors and sizes on Amazon these days. Buy one or one for every day of the week and give Patterico some dough.
daleyrocks (bf33e9) — 8/25/2011 @ 8:03 pm(BTW, I’m betting that given MD in Philly’s last comment, with its reference to HPV, some troll will immediately hijack this thread to argue about Rick Perry.)
Beldar (8e755e) — 8/25/2011 @ 8:04 pmI did read closely! I’m merely reinforcing your points through repetition, admittedly without improving on them.
Beldar (8e755e) — 8/25/2011 @ 8:05 pmBeldar- The tombstone could be more discrete and simply say “Don’t put off until next week what you could have done today”.
MD in Philly (3d3f72) — 8/25/2011 @ 8:06 pmBusted. 🙁
Beldar (8e755e) — 8/25/2011 @ 8:07 pmBecause of the doc’s decision to proceed, this gentleman lost, at most, a chance to make a decision in which the alternatives were (a) losing some portion, or perhaps all, of his penis, or (b) going untreated.
This seems an enormous loss – and a very basic right. Death was not imminent so why not wait to ensure that a patient who might choose to lose part of his body, would actually freely and willfully do so?
Dana (4eca6e) — 8/25/2011 @ 8:09 pmSorry, Beldar. My insecurity showing. (How unbecoming)
daley- there is a store in our fair city named “CondemNation”, I think their first two shops were in Sodom and Gomorrah.
I don’t know about hijacking this thread about Rick Perry (I don’t want to hear about it), but it did occur to me that a Google search for “MD in Philly” would appear a little interesting right now.
MD in Philly (3d3f72) — 8/25/2011 @ 8:13 pmwilly whacked by doc
ColonelHaiku (8211ab) — 8/25/2011 @ 8:14 pmcancerous schlongey gone now
hey! shh-shh-shorty
When my kids were small, I’d take them down to Newport Beach once or twice a week during the summer. High point of the drive – always: Driving past the Condom Revolution. Never failed to elicit snickering and elbowing from the boys, and eye rolls from the girl.
Dana (4eca6e) — 8/25/2011 @ 8:16 pmDana, that amounts to saying, “My doctor should have subjected me to unnecessary risks to preserve my opportunity to make an irrational and possibly fatal decision.”
I believe in individual rights and personal autonomy. But I also believe that it can, and sometimes should, be delegated to one’s professionals, and one such circumstance is when one’s on the operating table, and the professional one has engaged is a physician. That’s what this patient did through the consent form; and he was not betrayed, but saved.
Beldar (8e755e) — 8/25/2011 @ 8:17 pmBeldar – How about: “For want of a stiffy I became a stiff” as a tombstone?
daleyrocks (bf33e9) — 8/25/2011 @ 8:20 pmBeldar,
I understand your point but it’s still his right to choose whether to make a rational or possibly fatal decision.
I’m not a 64 year old male, so I’m not quite sure how impacting the loss of one’s organ would be, but I tend to think if I as a woman, awoke from a fairly routine breast procedure to discover I had my breast removed for the same reason, I would be pretty upset. I don’t think it’s unreasonable to assume that most people would want to be able to make the choice for themselves.
Dana (4eca6e) — 8/25/2011 @ 8:26 pmEh. I understand your point but it’s still his right to choose whether to make a
Dana (4eca6e) — 8/25/2011 @ 8:26 pmrationalirrational or possibly fatal decision.Let me say my last thing on this. This is not about what is reasonable or anything like that. This is about his God-given right to consent—or withhold consent—from any procedure.
The ordinary rule is and should be that you are not allowed to lay hands on another person without their consent.
Imagine this scenario. Imagine while the patient was awake, and about to go in for surgery, the doctor somehow discovered the cancer. The doctor tells the patient he is going to have to amputate. And imagine that the patient said, “no.”
Could the doctor then force the man to undergo this surgery? Could he use several orderlies to strap him down and force him to take the anesthesia?
Beldar will tell you, no. That is black letter law battery (and a few other torts). And reasonableness doesn’t enter into it. The man refused consent, and that is the end of it. If it kills him, so be it.
Now, of course, there are times when it is impossible to obtain consent. A man might be in an auto accident, and be knocked unconscious and be in need of medical attention—such as because of a bleeding wound. The paramedics don’t in that situation have the option of obtaining consent, and therefore the law allows them to act in the patient’s best interest, as best as they know.
But they are supposed to obtain the consent of the patient at the earliest opportunity. And that is the correct way to approach this. If it is possible to obtain his consent, get it. Period. No, ifs, ands or buts. The doctor had time to get consent and therefore he should have done so.
So unless someone convinces me that the doctor had no opportunity to get consent I think the doctor was wrong.
Aaron Worthing (73a7ea) — 8/25/2011 @ 8:32 pm“Let me say my last thing on this.”
Aaron – Don’t let it be your last thing. As MD in Philly has so helpfully provided the visuals, with cauliflower shaped wieners, the possibilities are endless.
Lotion or hollandaise?
daleyrocks (bf33e9) — 8/25/2011 @ 8:39 pmI denounce myself, and duck.
daleyrocks (bf33e9) — 8/25/2011 @ 8:40 pm@ Dana, you write “[I]t’s still his right to choose whether to make a rational irrational or possibly fatal decision.”
Yes, absolutely! Indeed, it was indeed his right exclusively, until he delegated it in writing to his physician because he was about to become incapable of consultation in the event of changed circumstances.
Objectively, rationally, by anyone who’s not irrationally attached to the notion of death by rotting penis, that voluntary delegation of authority turned out to be a very good decision on his part.
I’d still like to see the language of the informed consent. But my strong hunch is that it was drafted broadly enough to cover this contingency.
Beldar (8e755e) — 8/25/2011 @ 8:44 pmBS. He was already having fungal issues bad enough to require surgical intervention. It is not like he was there to get his appendix removed and the doc said “hey, you have crank cancer, let’s snip a little off”. He was already doing surgery on his crank. Anyone care to bet that it was the cancer causing the symptoms that led to the surgical intervention? Or that he would have sued regardless? Given the fact his separated spouse sued for loss of consortium, it seems abundantly clear that this was a lottery.
JD (318f81) — 8/25/2011 @ 8:49 pmNo reasonable person would trade his life for his penis, and “reasonable person” is the standard, Aaron.
Again, how do you know that only an unreasonable person would trade his life for keeping his organ in tact? Many people with different forms of cancer opt to forego treatment, instead *choosing* to spend the rest of whatever days they may have left without any sort of amputation or excision of a cancerous organ – or any kind of treatment. My mother-in-law was such a person, and she was 64 old and of sound mind. While I may have anguished over her choice, it was indeed *hers* to make.
The Kentucky case was not a life or death situation. Period.
Dana (4eca6e) — 8/25/2011 @ 8:49 pmThought this was about Anthony Weiner.
DohBiden (d54602) — 8/25/2011 @ 8:50 pmIt seems like you are saying that an extreme and irrational case means many patients have to die because the Doctors must practice extreme defensive medicine to satisfy the lawyers rather than practicing responsible medicine. I think that is part of how we got into the mess we now have in the first place.
I would welcome MD in Philly’s thoughts on this.
Aaron, you don’t think the consent form was enough? Or do you think such forms must be notarized and the signers questioned about their understanding before any procedure? If he had been awakened and gave his consent would you support a claim he was groggy or scarred and didn’t think enough about alternatives before agreeing? How extreme would you go with this?
Machinist (b6f7da) — 8/25/2011 @ 8:50 pm@ daleyrocks: When my ex was in med school, I had occasion from time to time to buy a pitcher of beer (or two or three) for her and some of her female colleagues. On more than one occasion, they got into “can you top this?” tales about stuff they’d seen at the county charity hospital, especially in the ER on weekend nights. Among the descriptive terms I recall were “schlong-a-rama.”
Beldar (8e755e) — 8/25/2011 @ 8:50 pmyou just can’t ever take anything for granted is the takeaway here I guess
happyfeet (3c92a1) — 8/25/2011 @ 8:54 pm-Comment by Dana — 8/25/2011 @ 8:49 pm-
Dana, while a strongly support the right of someone to refuse treatment I would point out that this man was there to have surgery on this member, the Doctor just had to carry it farther. It was never intended that the member was to be left intact.
Machinist (b6f7da) — 8/25/2011 @ 8:55 pmBeldar – I think Patterico should do a reader poll; lotion or hollandaise.
daleyrocks (bf33e9) — 8/25/2011 @ 8:55 pmDana: I’m not saying we should force everyone to be “reasonable.”
But this patient had already consented to surgery. He had a tumor whether he consented or not. He couldn’t be consulted without subjecting him to additional significant risk which would be entirely unnecessary unless one presumes that he’d have made an unreasonable choice. In using the discretion that was delegated to him by the consent form, the surgeon’s decision was certainly reasonable.
Keep in mind that if this case wins, it doesn’t just affect those who in fact make unreasonable choices. It potentially affects everyone who has surgery, because if a physician can’t rely on the written informed consent of his patient — including the discretion it deliberately commits to the physician’s medical on-the-spot judgment — then any sort of surprise means you get closed up and sent back to the recovery room, when you could (and should) have been cured.
If you permit recovery in this case, you destroy my right to effectively delegate to my doctor, because he won’t be able to trust anything I sign against the possibility that I change my mind or have second thoughts.
You sure you want to go down that path? You want to eliminate someone’s ability to contract for this type of medical care, in favor of one which turns on legal considerations and fears of lawsuits?
Beldar (8e755e) — 8/25/2011 @ 8:58 pm@ Machinist,
the Doctor just had to carry it farther.
But the doctor *didn’t* have to carry it farther – he *chose* to. He could have waited as death of the patient was not imminent. He took the choice away from the patient.
Dana (4eca6e) — 8/25/2011 @ 9:00 pm(Believe me, when my doctors see that I’m a lawyer, I *need* as much help reassuring them as I can get.)
Beldar (8e755e) — 8/25/2011 @ 9:02 pmSo the left thinks bush wasn’t great because he was a perpetual war kind of guy but don’t care that obama is continuing his wars.
DohBiden (d54602) — 8/25/2011 @ 9:02 pmBeldar, without seeing the precise wording of the consent form, isn’t this at best, speculation?
Dana (4eca6e) — 8/25/2011 @ 9:03 pmAs a general principle, doctors really aren’t God and they don’t know what the future holds in detail. That is why it is assumed that the doctor has permission to address unexpected complications during a procedure.
Aaron, you are either minimizing the risk of having a second procedure or denying it being of importance.
Dana, your analogy is not as accurate as it could be. Let’s say you go to the doctor because you have a lump in a breast. In fact, it is painful and the skin over the area is red and thickened. The doctor examines, says he thinks it is an abscess, and recommends surgery. During the surgery he/she finds that the abscess is actually caused by a tumor. Instead of incising and draining the abscess he/she does a lumpectomy. I believe this scenario is closer to the situation. If you think this is over agressiveness by the doc, that is your call, but I think it is closer to the reality of the situation.
It seems to me there are those who see the doctor as making a choice that is harmful to the patient instead of leaving the situation “neutral”.
Others of us don’t see any “neutral” position.
The person has undergone the risk of anesthesia to have surgery. The risks of surgery include bleeding, infection, blah, blah, blah which the patient agrees in principle to let the doctor manage. What if the doctor found fungal infection but had to resect a larger are than planned becuase of how severe it was? Does the doc wake up the patient to say, “the incision is going to take more stitches to close than I thought”? The doctor is operating on the area as planned, during the procedure the severity of the situation is made apparent, the doctor deals with the area of concern. It is not a decision between doing nothing and awaiting consent or doing something, it’s an issue of doing something or something. The guy is not going to wake up to find he had uncomplicated circumcision as expected. He’s going to wake up with either a previously hidden cancer now obvious on his penis, or a section of penis missing where there was cancer that has been removed. Either way he is not going to wake up at “ground zero”, the way he was before the surgery.
You could say that he gave consent for a circumcision, not to be put to sleep not to have a circumcision, and in order to do the circumcision the surrounding cancerous tissue needed to be removed.
Patterico, you never expected this much discussion, now did you?
MD in Philly (3d3f72) — 8/25/2011 @ 9:12 pm@ Dana (#68): Yes, it’s speculation, but it’s not wholly uninformed speculation. My assumptions are based on other surgical informed consent forms I’ve read. This one, which I found online with about 30 seconds googling, is fairly typical, I think, in including language like this:
If that’s the kind of language this guy agreed to — and I’m only guessing that it is, but it’s a reasonable guess — he should be legally bound by it.
Beldar (8e755e) — 8/25/2011 @ 9:22 pmPatterico, actually, I’ve told one war story from the trial I mentioned above (#5) previously in your comments.
Beldar (8e755e) — 8/25/2011 @ 9:33 pmThe reason that story isn’t inconsistent with my earlier comment — to the effect that I was proud of everyone for keeping that case “all business” — is that mine was primarily a lawyer joke, not a penis joke.
Although there are some who think that’s an illusory distinction.
Beldar (8e755e) — 8/25/2011 @ 9:37 pmDana, at #65 you are again assuming that the doctor could have chosen to do nothing, and that the only reason for the doctor to do “something” was if the patient’s life was in imminent danger.
Let’s look at the details. The patient is now under anesthesia. The doctor begins to cut where the foreskin is stuck. After cutting through some of the adhesions he sees that what is really the problem is cancer hiding under the foreskin. In fact, it was more traumatic than expected to get this far in the surgery and the doc anticipates more than the usual swelling post-op. So here on the table is a patient with bleeding surgical incisions who you aren’t sure will be able to urinate after he wakes up, with a cancer in the middle of the mess.. Even if he can pee, the incisions aren’t going to heal because at the margin is cancerous tissue that will not heal.
So your choice is to:
1) wake him up half-way through an incomplete procedure and agonize with a distended bladder, scream when someone tries to put in a catheter, and curses when you end up sticking a needle through his skin to put a supra-pubic catheter in to drain his bladder. Next morning he is calling the lawyer becuase his doc didn’t finish the operation and he can’t have sex in this condition so his wife gets in on it to.
or
2) complete the surgery, resecting the cancer leaving as much healthy tissue as possible, having clean surgical incisions that are sutured and expected to heal, and confidence that urination will not be a problem.
That is the choice the doctor has. I don’t think there is a “wake him up, explain the situation, put him back to sleep and finish if he wants to” option. He would need to be fully awake, alert, and not under duress to make informed consent.
Years ago there was a great college basketball player named Hank Gathers. He was found to have a dangerous heart condition and placed on the medication propranolol. He felt that the medication “slowed him down” and inhibited his performance- so without permission he decreased the dose or stopped it altogether. He collapsed and died one game from the cardiac arrhythmia the propranolol was intended to prevent. His mother sued for multi-millions on the basis of lost earnings from an NBA career that didn’t happen. The ironic thing is, had Gathers taken the medicine he was supposed to he would be alive, but perhaps wouldn’t have had the expected career in the NBA. His school and cardiologist settled for about 1 million each, I read- that was what should have been criminal. The school and doc were making decisions on the best interest for Gathers, he refused to listen, died, then others had to pay up.
Some things aren’t fair, and suing doctors doesn’t make it any fairer.
MD in Philly (3d3f72) — 8/25/2011 @ 9:46 pmBeldar, your example consent at #70 is certainly typical of my experience.
Perhaps my detailed explanation at #73 will bring some clarity. I’m not sure a surgeon could operate under the expectations of consent as some have expressed.
MD in Philly (3d3f72) — 8/25/2011 @ 9:51 pm-Comment by MD in Philly — 8/25/2011 @ 9:46 pm-
Thank you. A fine explanation for a layman such as myself.
One of the great things about this site is the expertise in so many areas we all get to draw on.
Machinist (b6f7da) — 8/25/2011 @ 10:26 pmCue lefty outrage only islamocommies can amputate limbs or digits.
DohBiden (d54602) — 8/25/2011 @ 10:27 pmWhile reading this I have been wondering how much of the fevered “debate” is related to the specific and very sensitive body part involved. So, 2 questions:
1. If this had been, for instance, his tongue or an internal organ in which the surprise cancer was found mid-surgery would the doctor’s approach have been the same? Would the patient’s reaction have been the same? Would commenters see this case any differently?
2. Is it truly possible in this day and age that the cancer was a complete surprise? Were the symptoms not suggestive of a larger issue? Was no diagnostic machinery or other type of test available, pre-op, to guide the surgeon and the patient as to what lay ahead?
elissa (c01b9b) — 8/25/2011 @ 10:43 pmThat remains an option if he wants it. And he can do it painlessly with the right drugs, instead of in agony from the cancer. So what has he lost?
Milhouse (ea66e3) — 8/25/2011 @ 10:57 pmI don’t think this case would have survived a summary judgment motion in Texas. Consider Byington v. Mize, 2002 WL 1494219 (Tex. App.–Dallas 2002, no pet’n)(unpublished opinion):
Technically this isn’t binding precedent, but that usually indicates that the appellate court thinks it’s making no new law and that the result is obvious.
Beldar (8e755e) — 8/25/2011 @ 10:57 pmSlightly off-point, but here’s a case where the plaintiff’s battery claim against an assisting surgeon was dismissed on the basis of a consent form that included treatment from not only one doctor identified by name, but also by “such associates, technical assistants and other health care providers as [he] may deem necessary”: Haynes v. Beceiro, 219 S.W.3d 24, 26-27 (Tex. App.–San Antonio 2006, no pet’n).
Beldar (8e755e) — 8/25/2011 @ 11:11 pmBeldar – In some parts of California you can’t even get a circumcision these days, so this guy was lucky I guess.
daleyrocks (bf33e9) — 8/25/2011 @ 11:53 pm2. Is it truly possible in this day and age that the cancer was a complete surprise? Were the symptoms not suggestive of a larger issue? Was no diagnostic machinery or other type of test available, pre-op, to guide the surgeon and the patient as to what lay ahead?
Comment by elissa
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
germans breed dachshund
ColonelHaiku (8211ab) — 8/26/2011 @ 5:46 amto sniff disease out and take
bite out of cancer
canine sniffer in
elissa (4904b3) — 8/26/2011 @ 7:37 amlaboratory better
than surprise post op
Likely the problem was that the foreskin was adhered and would like freely move. The inflammation causing this was under the foreskin and not visible. I doubt many penile MRI’s are done to even know how to interpret the findings if one was done in this case. Fungal (yeast-Candida) infections are a very common cause for this, and some may have been present, suggesting it as the primary cause.
Life happens.
MD in Philly (3d3f72) — 8/26/2011 @ 7:38 amwould
MD in Philly (3d3f72) — 8/26/2011 @ 10:13 amlikefreely movewould not freely move
I am curious as to the possibility of non-surgical reduction in the cancer. With modern technologies for precision irradiation and chemotherapy drugs, the progression of the cancer may have been arrested without mutilating his body parts.
OmegaPaladin (a63d4d) — 8/27/2011 @ 3:32 amGood questions and I’m not an oncologist, but as far as I know treatment of all cancers of the skin (in this case skin on the penis) include surgical resection, often at first a limited resection, then more extensive if pathology of the removed tissue shows it is necessary. Another commenter had read elsewhere that the patient in fact had a second operation where more of the penis was removed.
MD in Philly (3d3f72) — 8/27/2011 @ 6:10 amRadiation therapy includes the risk of fibrosis, which could cause painful disfigurement.
This fellow needed a better way of addressing his anger and grief over the situation than spending his time trying to get rich and making a lawyer rich.
Did his penis have a DNR?
Pinandpuller (9709fe) — 8/27/2011 @ 9:14 pm