Tuesday, September 15, 2020

Burchell v. Loma Linda School of Medicine (Cal. Ct. App. - Sept. 10, 2020)

Particularly in retrospect, Defendants might have wanted to settle this one when they had the chance:

"In 2014, Burchell sought medical care after discovering a small lump in his scrotum. At the time, he was 41 years old. He was experiencing some scrotum pain but had no complaints about pain, deformity, or disfunction of his penis, and he reported that he was sexually active.

After some initial examinations and tests, Burchell agreed to undergo surgery to remove the mass and send it for testing. The consent forms described the procedure as a “local excision of a scrotal mass,” which Burchell was informed was simple, consisting of the surgeon, Barker, making a small incision, removing the mass, and then closing the incision. The common risks and side effects were bleeding, infection, and possible injury to surrounding tissue. The surgery was to be performed under general anesthesia, but as an outpatient; Burchell was expected to go home the same day and be “back on [his] feet” the next day. Burchell designated a proxy, his ex-wife, to make medical decisions on his behalf while he was unable to do so.

During the surgery, which was performed on August 12, 2014, Barker discovered that the mass was larger than expected. Presurgical examinations had detected what Barker believed to be about a one-centimeter mass in the scrotum. In surgery, Barker discovered that the mass was much larger, and it appeared to be vascularized and invading the nerves, blood vessels, and erectile chambers of Burchell’s penis. From what he could observe, Barker believed that the mass was malignant, and he understood that even a benign tumor could be harmful.

Barker considered removing only a portion of the mass for biopsy. He decided, however, to instead remove the entire mass, excising tissue not only from Burchell’s scrotum but also the penis—a “resection of the proximal corpora.” In all, Barker removed a specimen measuring eight by five by two and a half-centimeters. The mass would later be identified as a benign cystic lymphangioma.

Barker knew that this more extensive surgery would render Burchell impotent, causing the “immediate loss of the erectile chambers,” and damaging the nerves and blood supply to the penis. Barker made the decision to perform this procedure without further consulting either Burchell or his designated proxy, Burchell’s ex-wife. Burchell was under general anesthesia, so he could not be consulted without stopping the surgery. Although Burchell’s ex-wife was present at the facility during the surgery, Barker did not realize she had been designated to act as Burchell’s proxy; he never looked at that portion of the consent form. After the surgery, Burchell could not be sent home as an outpatient, but instead he was hospitalized for several days for “observation and pain control.”

Some of the more minor side effects of the surgery resolved in time. A week or two after the surgery, Burchell had to seek emergency treatment for an infection. He had “four huge boils” drained and described his pain as “excruciating,” but the infection was ultimately cured. Also, initially, Burchell had pain and numbness in his arms, apparently from not being repositioned during a surgery that took much longer than expected. That issue, however, resolved over time.

Other effects of the surgery have been longer lasting. Since the surgery, Burchell’s 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."

Plaintiff made a $1.5 million CCP 998 settlement offer.  Defendants didn't accept it.  At trial, the jury awarded $9.27 million in damages.  Plus Plaintiff got another $1 million-plus in prejudgment interest.

I bet that $1.5 million offer is looking pretty good right now.