October 14, 2020

The September 11, 2020 published opinion of the Court of Appeal of the State of California Fourth Appellate District Division Two (“California Appellate Court”) affirmed the jury’s award of $9,250,000 in noneconomic damages for a medical battery claim where a surgeon removed a portion of the plaintiff’s penis without his consent during a procedure where the surgeon was only authorized to remove a small mass in his scrotum for testing, stating that the $250,000 cap imposed under MICRA did not apply: “Where a plaintiff brings a hybrid action, proceeding on some theories that would constitute an intentional tort and others that are based on professional negligence, and the plaintiff obtains a recovery that may be based on the “non-MICRA theory,” MICRA’s limitation on noneconomic damages does not apply … The limitation on such damages provided by Civil Code section 3333.2 does not apply to [the plaintiff’s] medical battery claim, and we do not find the award excessive.”

The Underlying Facts

In 2014, the plaintiff underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. The surgeon discovered that the mass was more extensive than expected, involving not only the scrotum but also the penis. The surgeon believed that the mass was malignant. Without consulting either the plaintiff, who was under anesthesia, or the person the plaintiff had  designated as his medical proxy, the surgeon removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. The mass turned out to be benign.

The plaintiff suffered serious side effects, some of which are permanent and irreversible. At the time of the surgery, the plaintiff was 41 years old, experiencing some scrotum pain but had no complaints about pain, deformity, or disfunction of his penis, and he reported that he was sexually active. As a result of the surgery during which a specimen measuring eight by five by two and a half-centimeters was removed that was later identified as a benign cystic lymphangioma, the plaintiff was hospitalized for several days instead of being sent home; he suffered an infection (“four huge boils” had to be drained that caused excruciating pain); he had pain and numbness in his arms, apparently from not being repositioned during a surgery that took much longer than expected (which resolved); his penis substantially “deviates to the right side,” a result of a large section of the right proximal corpora having been removed; he continues to have “spraying of his urinary stream and difficulty voiding in the standing position”; he has had constant pain internal to the base of his penis and no feeling at all in his penis; he had two reconstructive surgeries, one in 2015 and another in 2016; when his penis is touched or moved, his pain level “goes up”; and, generally sex is painful, not pleasurable, inter alia.

MICRA Cap On Noneconomic Damages

MICRA, in Civil Code section 3333.2, provides: “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. [¶] (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”

California Appellate Court Opinion

The California Appellate Court stated: “this is not a case where the alleged medical battery arose from failure to disclose an infrequent complication of a consented-to procedure, which is the type of battery that the case law has held to be based on professional negligence … [h]ere, [the plaintiff’s] medical battery claim falls squarely into the first category of medical battery, not subject to MICRA’s limitations on noneconomic damages. [The plaintiff] consented to have a small mass removed from his scrotum. He did not consent to [the surgeon] performing any surgery involving his penis, nor did his designated proxy consent for him. Although, like a “local excision of a scrotal mass,” the surgery [the surgeon] performed involved the removal of a concerning bit of tissue, it was nevertheless a substantially different treatment than the one to which [the plaintiff] consented … the patient consented only to removal of a small mass for diagnosis, but the surgeon performed a much more extensive resection … a doctor may act beyond the patient’s express authorization in “life- or health-threatening situations” … [h]ere, however, there was substantial evidence to support a finding that there was no such emergency.”

The California Appellate Court further stated: “[The plaintiff] alleged and proved to the jury’s satisfaction that he consented to one treatment, and [the surgeon] performed a substantially different treatment for which [the plaintiff] gave no consent, in the absence of any emergency that would justify doing so … This was not a failure to disclose an infrequent complication, but the performance of an unexpected and unconsented-to procedure.”

With regard to the defendant’s argument that the jury’s award of noneconomic damages was excessive, the California Appellate Court stated, “the award of noneconomic damages reached by the jury, in which the trial court judge concurred, strikes us as well within the bounds of reason given the evidence presented at trial … we disagree that we should consider whether there was a “reasonable relationship” between the award of economic and noneconomic damages here. Without more, the ratio between economic and noneconomic damages that one could calculate from a judgment does not tend to demonstrate that the award of noneconomic damages was unreasonable. The relevant question is whether the values that make up the ratio are, separately, supported by the evidence. Here, they are.”

Source Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, E071146.

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