BANG v. CHARLES T. MILLER HOSPITAL - Case Follow Up Note

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The Bang case is not an anomaly.  It is a clear statement of the law followed in most states. 

Here is California's Jury Instruction for Medical Battery:

Medical Battery - Conditional Consent

 

[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] consented to a medical procedure, but only on the condition that [describe what had to occur before consent would be given];
2. That [name of defendant] proceeded without this condition having occurred;
3. That [name of defendant] intended to perform the procedure with knowledge that the condition had not occurred;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

A patient can consent to a medical procedure by words or conduct.

EXPERT TESTIMONY AND MEDICAL BATTERY:

Here is an interesting Tennessee case in which a dentist was sued for medical battery when he removed more teeth than the patient allowed.  One issue was whether the plaintiff/patient needed expert testimony to prove medical battery.  The court said:

"We hold that expert testimony is not required in a medical battery case."

Blanchard v. Kellum -medical battery - expert witness

EMERGENCY EXCEPTION TO INFORMED CONSENT - PENIS REMOVED

When a patient only consents to a relatively simple circumcision and wakes up with his penis removed the scene seems set for a perfect medical battery case.

However, there are exceptions to the general requirement that a physician obtain informed consent to medical treatment: 

(1)  Unconscious or mentally incapacitated patient; 

(2)  Medical emergency; 

(3)  Patient Waiver 

(4)  Therapeutic privilege.

In this tricky case the physician removed the patient's penis while performing a circumcision because he discovered a potentially life-threatening cancer that needed to be removed.

The patient was disappointed when he was revived and elected to sue the physician.  The physician won.

 Penis Sliced Off by Doctor - Doctor Wins Suit

 Court of Appeals upholds doctor's win in court. 

In reaching its decision the court noted that "there is uncontroverted testimony in the record that if Mr. Seaton were not treated for the penile cancer, it would prove fatal in the future . . . ."

This article is helpful for understanding the trial court's decision:

 Penis Amputation Verdict - Kentucky Trial Court Review