Iowa Appellate Court Orders New Trial For Doctor Who Performed Vasectomy Instead Of Circumcision

In its opinion filed on November 23, 2021, the Court of Appeals of Iowa (“Iowa Appellate Court) held in an Iowa medical malpractice case where the non-English-speaking plaintiff alleged that the defendants performed a vasectomy on him instead of the intended circumcision, that several errors had been committed at the trial level and therefore remanded for a new trial.

Background Facts

Plaintiff Zaw Zaw (“Zaw”} was born in Burma, and his first language is Burmese. Zaw, his wife, and their three children moved to Iowa in May 2015. About six months later, Zaw was referred by his primary care physician to The Iowa Clinic, P.C. for a circumcision. At The Iowa Clinic, Zaw met with Dr. Kevin Birusingh. An interpreter hired by the clinic through LANGUAGEtech, Inc. attended the initial appointment and provided interpretation services for Zaw and the doctor. The same occurred at the second appointment, at which Dr. Birusingh performed a vasectomy—not a circumcision—on Zaw.

Zaw filed an Iowa medical malpractice lawsuit, alleging Dr. Birusingh was medically negligent and The Iowa Clinic, as Dr. Birusingh’s employer, was vicariously liable for the doctor’s actions. Dr. Birusingh and The Iowa Clinic later moved to bring suit against LANGUAGEtech, alleging that if Dr. Birusingh was found to be negligent, then they would have a cause of action against the interpreters.

Following a multi-day jury trial, an Iowa medical malpractice jury was instructed to consider whether Dr. Birusingh was negligent in his communication with Zaw or in failing to obtain informed consent from Zaw. In a general verdict, the jury concluded both that Dr. Birusingh was negligent and caused damage to Zaw and that Zaw was negligent or failed to mitigate his damages. The jury assigned 70% of the fault to Dr. Birusingh, 30% of the fault to Zaw, and no fault to LANGUAGEtech. The jury awarded Zaw $500,000 for past loss of bodily function; $250,000 for future loss of bodily function; $1,000,000 for past physical and mental pain and suffering; and $250,000 for future physical and mental pain and suffering. Dr. Birusingh and The Iowa Clinic filed an appeal.

Iowa Appellate Court Opinion

The Iowa Appellate Court held that “Zaw’s negligent-communication claim should not have gone to the jury, as there was neither expert testimony nor substantial evidence to support it. As such, the district court was wrong to instruct the jury it could find Dr. Birusingh liable for medical negligence under the theory of “negligent communication.” And we find the court erred in its ruling denying Dr. Birusingh and The Iowa Clinic’s motion for JNOV on this theory of negligence,” explaining that “no expert testified as to what steps a prudent doctor would take in talking to or meeting with his or her staff or coworkers before meeting with a patient or performing a procedure. Likewise, no one testified it was outside the standard of care of a urologist, through his or her clinic, to shred documents provided from the patient or another clinic.”

With regard to Zaw’s informed consent claim, the Iowa Appellate Court stated: “when we consider whether substantial evidence supported the jury’s finding Dr. Birusingh failed to obtain informed consent, the doctor’s duty to impart information is based on making a reasonable effort—not on whether the patient actually grasps the information … the physician discharges the duty when he [or she] makes a reasonable effort to convey sufficient information although the patient, without fault of the physician, may not fully grasp it … the material information Dr. Birusingh purportedly failed to disclose was the vasectomy itself. Dr. Birusingh and The Iowa Clinic assert that even if Zaw proved he was unaware of the vasectomy until after Dr. Birusingh performed it, Zaw did not establish that lack of knowledge was due to Dr. Birusingh’s failure to disclose material information, so his claim fails.”

However, the Iowa Appellate Court further ruled: “There were also questions raised about Dr. Birusingh’s physical examination of Zaw and whether it was rushed. Dr. Birusingh’s notes from Zaw’s first appointment list a number of things Dr. Birusingh claimed he told Zaw about the procedure, but the physical exam portion of his notes failed to mention either the bead in Zaw’s penis or the phimosis. Dr. Birusingh explained these conditions were not important to his examination related to the vasectomy. Viewing the evidence in the light most favorable to the nonmoving parties, substantial evidence supported a finding Dr. Birusingh violated his duty in disclosing the procedure to Zaw. Thus, Dr. Birusingh and The Iowa Clinic were not entitled to a JNOV on the informed-consent theory.”

Source Zaw v. Birusingh, No. 20-0697.

If you or a loved one may have been harmed as a result of medical negligence in Iowa or in another U.S. state, you should promptly find an Iowa medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, January 12th, 2022 at 5:25 am. Both comments and pings are currently closed.

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