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Court Finds Non-MICRA 'Battery' During Surgery

In upholding a $9 million award for noneconomic damages, the Court of Appeal has found that a jury was justified in finding that a surgeon went beyond the patient’s consent in a case alleging medical battery. 

The 41-year-old patient sought medical care after discovering a small lump in his scrotum. Though the area was somewhat painful, he had no complaints about pain, deformity, or dysfunction of the penis. He reported being sexually active. After some examinations and tests, the patient agreed to a “local excision of a scrotal mass” and that the mass would be sent for testing. According to the facts relied on by the Court of Appeal, the patient’s surgeon explained that the outpatient procedure would involve a small incision, removal of the mass, and closure of the incision. While common risks included bleeding, infection, and possible injury to surrounding tissue, the patient was told he should expect to be “back on [his] feet” the next day. The patient designated his ex-wife as his proxy for any medical decisions required while under general anesthesia.

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During surgery, Dr. Gary Baker discovered a mass that was larger than expected: Instead of a one centimeter mass in the scrotum, Dr. Baker found what appeared to be a vascularized mass invading nerves, blood vessels, and erectile chambers of the patient’s penis. From what he observed, he thought the mass was malignant, though (in the facts relied on by the Court of Appeal) Dr. Baker understood that even a benign tumor could be harmful.

Though he considered removing only a portion of the mass for biopsy, the surgeon decided to remove the entire tumor, excising tissue not only from the scrotum, but also the penis, described as a resection of the proximal corpora. The removed 8x5x2.5 cm mass was later identified as a benign cystic lymphangioma.

According to the facts as recited in Keith Burchell v. Faculty Physicians and Surgeons of the Loma Linda University School of Medicine, Dr. Baker knew that his more extensive surgery would render the patient impotent from loss of the erectile chambers and nerve and blood-supply damage to the penis. With the patient under general anesthesia, the surgeon did not contact the patient’s ex-wife, who was on-site. The patient stayed hospitalized for several days for observation and pain control.

The patient filed a lawsuit alleging medical negligence and alleging battery. In addition to some deformity, he claimed that he has difficulty voiding from a standing position, has pain at the base of his penis, and has no feeling at all in his penis. After two reconstructive surgeries, the pain was reduced, but he remains “uncomfortable” at best, and when his penis is touched or moved, his pain level “goes up.” An inability to achieve an erection following the mass’ excision was only partially and unsatisfactorily resolved through the two reconstructive surgeries, according to the Court of Appeal opinion. At the time of trial, the patient was not willing to undergo a proposed third surgery.

At trial, the jury found in favor of the patient on both the medical negligence action and the medical battery actions and awarded $9.25 million in economic damages against the employer of Dr. Baker, Faculty Physicians and Surgeons of the Loma Linda School of Medicine (FPS). (The parties stipulated to economic damages of $22,346, which were added to the total.)

Following the verdict, FPS argued that the $9.25 million noneconomic damages must be reduced to the MICRA limit on such damages of $250,000. The trial court refused to make the reduction.

That decision was affirmed by the Court of Appeal, which explained its decision by first quoting from MICRA’s Civil Code Section 3333.2, which 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 damages. (b) In no action shall the amount of damages for noneconomic losses exceed . . . (250,000).”

The Court of Appeal relied on California case law distinguishing “two qualitatively different types” of medical battery. “The first, an intentional tort, occurs when a physician obtains a patient’s consent to perform one type of treatment, but performs a substantially different treatment for which the patient gave no consent. MICRA’s limitation on noneconomic damages does not apply to such claims,” the court wrote.

“The second type occurs when a physician performs the treatment for which the consent was obtained and an infrequent complication occurs that the physician failed to disclose when obtaining the patient’s consent,” the court explained.

“In that circumstance, the claim is based on professional negligence, not intentional misconduct, because the physician did not deliberately deviate from the consent, but merely failed to disclose all known potential complications. MICRA’s limitation on noneconomic damages applies to this sort of battery, which amounts to a claim that the doctor failed to meet the applicable standard of care in rendering his services.”

The San Bernardino-based Court of Appeal held that Mr. Burchell’s medical battery claim “falls squarely” into the first category of medical battery and not subject to MICRA. “Although, like a ‘local excision of a scrotal mass,’ the surgery [Dr.] Baker performed involved the removal of a concerning bit of tissue, it was nonetheless a substantially different treatment than the one to which [Mr.] Burchell consented.”

The Court of Appeal noted that the jury was instructed that a physician may act beyond the patient’s express authorization in “life- or health-threatening situations” but concluded that there was substantial evidence for the jury to find that there was no such emergency.   


Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to