The Best Safeguard

This case from Kentucky is an excellent example of why I do not think tort reform is necessary. The poster child for tort reform is the aggrieved doctor who just wants to practice normal medicine who can no longer afford insurance and must close his practice because of greedy trial lawyers. I do not believe that doctor exists. The safeguard necessary to protect doctors (and, let’s not forget what’s important here, their insurers) from runaway lawyers and juries is… lawyers and juries who pay attention to the evidence.

As is usual for reporting on medical malpractice, sensationalism triumphs over good reporting and you have to read the entire article, to the very end, before you understand why the verdict was what it was.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I dunno, I got to the third paragraph in and I said to myself, “Let me get this straight, you’re pissed at the guy because he saved your life? Well, you don’t need 16 million in restitution, if your life is worth less than your penis you have ample opportunity to resolve this problem yourself.”

    > “If this case stands, you go into a surgery … whatever
    > you consent for you may end up having something
    > done to you even when there is no emergency,” he said.

    Correct me if I’m wrong, good member of the bar, but isn’t it the case that civil tort doesn’t take into account precedent the same way criminal law does? If this case stands, doesn’t that mean pretty much bufkis the next time someone consents to a procedure and has something else done to them while they’re under? Isn’t civil tort supposed to be about resolving the particular case in front of the jury?

    I readily admit I can be brutally uncharitable about this sort of thing. Life occasionally sucks. It beats the alternative.

    • Precedent does matter in civil cases; prior cases help determine the appropriate standard of review in future cases. For instance if in my malpractice case, the doctor is permitted to offer evidence of an emergency that arises while I’m under anesthetic, when you later sue your doctor for malpractice, she should be able to make a similar claim. It does not mean that she should be believed, but rather that she should be able to do what the defendant doctor before her got to do.

      Where you may be getting tripped up is the issue of “reasonability,” which is inherently a jury function and inherently decided on a case-by-case basis. Was it reasonable under the circumstances of this case for the doctor to cut off part of the patient’s penis? What happened in past cases guides, but does not bind, that determination; the jury is free to say yes or no.

      • > Was it reasonable under the circumstances of
        > this case for the doctor to cut off part of the
        > patient’s penis? What happened in past cases
        > guides, but does not bind, that determination;
        > the jury is free to say yes or no.

        That is (I would say) a reasonable method of resolving disputes.

  2. So he was literally in immediate danger of dying? Like, if they didn’t cut the tip off he’d die right there on the table?

    If you want to play the “immediate threat” card then there needs to be an immediate threat. “He’ll die…a few years from now” is not an immediate threat. Even if cutting the tip off was the only possible treatment.

    • No, the plaintiff is appealing based upon the presumption that this is a necessary requirement (George said he planned to appeal on grounds that a doctor is allowed to change a consent for surgery only if there is a danger of imminent death.)

      I don’t know anything about KY law, so I don’t know what the full list of sufficient requirements are for altering a surgical consent. I don’t know the terms of the standard consent, either, for that matter.

      Of course, even if you agree that the doctor was out of bounds, that doesn’t mean that the damages that the plaintiff seeks are appropriate.

      I mean, you’ll have loss of consortium with someone if they’re dead. Also: if the appropriate treatment for penile cancer is a partial penectomy, but waiting would require a full penectomy, then one can argue that the doctor was in good faith attempting to allow his patient to retain sexual function while staying alive.

      • aaaaand we’re back to the “immediate death from penis cancer” question. Like, “if we wait one day longer to cut the end of your penis off, the cancer will be untreatable and you’ll die.”

        I mean, I’m going on the assumption that it was a matter of “come back tomorrow and we’ll talk, and then the next day we’ll do the cutting”. Obviously it’s not a matter of leaving it untreated, or “yeah I’ll be back in six months or maybe a year or so”.

    • This was the argument made by the plaintiff’s attorney (the right thing to do was to sew the patient up, bring him around, and counsel him before cutting off part of his penis). So either:

      1. Yes, it really was a case of excising the cancerous tissue immediately or face a serious risk of death, or
      2. Other health factors not discussed in the article suggested that placing the patient under general anaesthetic would be dangerous, indicating that no future sugeries would be probable, or
      3. The jury just plain liked the doctor and didn’t want to rule against him, or
      4. The doctor’s lawyers hired a medical expert who said it was within the standard of care to infer consent to excise cancerous tissue, or
      5. Some blend of 1, 2, 3, and 4.

  3. I have two points of objection:

    (1) The doctor may have won the verdict, but they didn’t win. By and large, they’ve lost before the case even enters a courtroom. It’s just a question of how much they’ve lost.

    (2) You can make light of the notion that litigation affects the decisions that doctors make in providing care or not, but it does happen. Just the othr day Dr. Wife and I were talking about a local doctor that I had previously not been aware did obstetrical work. Why did he stop? He was sued. He “won”, but it wasn’t worth it to him to continue to deliver babies. We live in an “underserved area” for obstetrics.

      • The vastly-increased rate of C-section deliveries in contemporary times is a direct result of lawsuits against OB/GYN practicioners.

Comments are closed.