Day on Torts
Insurance Journal reports that a Kentucky jury has sided with a physician who is alleged to have amputated a portion of his patient’s penis without the patient’s consent.
The article states that "[t]he doctor said he decided to amputate less than an inch of the penis after he found potentially deadly cancer during surgery in 2007. The rest of the penis was taken off later by another doctor. [The defendant doctor] testified that when he cut the foreskin, the tip of the penis had the appearance of rotten cauliflower, indicating cancer. A pathologist later testified that tests confirmed the diagnosis."
The plaintiff argued that the doctor should have allowed the patient to wake up from the procedure and determine whether he wanted the amputation. He alleged that he only gave consent for a circumcision. He also alleged negligence in performing the procedure.
I understand the plaintiff’s point, but quite frankly I can say with 100% confidence that I would not have accepted representation of the plaintiff in this case. While I understand and appreciate the argument that the informed consent form may not have permitted to the defendant doctor to amputate any portion of the penis, the problem is that the entire penis was later amputated. Thus, the fact that the plaintiff went without some portion (about one inch) of his penis for some period of time is (at least to me and probably to the jury ) of relatively little consequence.
Medical malpractice cases are hard. Really hard. It is a challenge not letting your emotions drive case selection decisions. The failure to do so will result in many more losses than wins.