Man sues over “botched” testicular surgery: Another frivolous lawsuit?
“A man is suing a hospital and one of its surgeons, claiming one of his testicles was wrongly removed during surgery.
Danny Curtis claims the surgeon at Kern Medical Center did not conduct a biopsy before arranging urgent surgery to remove a testicular tumor in July 2004, according to the lawsuit filed in Kern County Superior Court.”
I am not a urologist, so I did some reading into this. Are testicular biopsies necessary for the diagnosis of testicular cancer? The answer is no. Unfortunately, an orchiectomy (removal of the testicle) is the best way to diagnose testicular cancer. From UptoDate:
A radical inguinal orchiectomy should be performed to permit histologic evaluation of the primary tumor and to provide local tumor control. Neither scrotal ultrasound, as mentioned above, nor serum tumor markers are sufficiently accurate to replace radical inguinal orchiectomy. Scrotal violation at the time of surgery or an attempt to “biopsy” the testicle should be avoided because of concern for a poorer outcome.
In fact, studies show that those who had scrotal incisions for biopsy have a higher local recurrence rate as well as a higher relapse rate.
Thus, without knowing the details of the case, it seems that the physicians were doing the man a favor by not biopsying the testicle first. And their reward? A lawsuit.
Put yourself in the doctor’s shoes. You have a case of a suspicious testicular mass. You don’t know if it’s cancer or not. Biopsying the mass may lead to a worse outcome if it is cancer. However, there is a chance that it isn’t cancer. The only way to know for sure would be to take out the mass and look at it under a microscope. For the lawyers in the audience, what would you do? Such is the uncertainty inherent in medicine.
Our trial system unfortunately pounces on such uncertainty. The public has to understand that medicine is as much art as science – there are many cases where there are no “right” answers. Believe it or not, most doctors have the patients’ best interests at heart.
Update:
A urologist writes in the comments:
As a urologist, I can tell you that a testes should never be biopsied prior to removal if cancer is suspected. Why? It significantly increases the risk of tumor dissemination. Solid lesions in the testes are malignant >95% of the time. Therefore the patient needs to be counseled preop that there is a 2-4% chance that the testes will be removed and not have cancer. The risk of biospy exceeds the risk of removal of a non-cancerous testes. This is standard of care, and the only basis for suit is lack of informed consent.
Update 2:
Dr. Bob chimes in with an informed take from a urologist: Sued for proper care.
Related posts:
- Importance of a second opinion
- Out-of-control Florida jury strikes again
- How does cancer screening cause harm?
- A Good Samaritan surgeon is not shielded from liability
- Using cadaver bone during surgery: Sued for battery
- Op-ed: Not all screening tests lead to early, better treatment
- "A CT scan in hand is far better then no CT scan or biopsy at all"
{ 28 comments }
(hears the approaching footfalls of CuriousJD…)
So how come the doc didn’t explain to this chap the pros and cons and offer the fellow a choice?
Biopsy isn’t necessary to diagnose testicular cancer, ok. But this fellow *didn’t* have testicular cancer. So how was the mistake made? (from the article: Doctors later discovered that the tumor was not malignant and did not need to be removed, according to court documents.)
Why didn’t the patient know about the option for biopsy, its downside, and get a chance to withold consent for surgery to remove the testicle?
Was he ever told it might NOT be cancer, and that there was a chance of avoiding surgery, but that biopsy carried its own risks?
It’s not a frivolous lawsuit if the patient wasn’t
fully informed… left out of the loop on the possibility the tumor was benign, and that other ways of determining what was going were available.
The patient might have opted to withold consent to that surgery or ANY surgery if he had been fully informed.
Were there signs the doctor missed or test he eschewed that could have distinguished a benign process? If not, why didn’t, at minimum, the patient know he might not have cancer when this surgery was done, or that biopsy was an imperfect but available way to rule out cancer?
For example, the doc might have said:
“I think you have testicular cancer based on x,y,and z. There is a small chance that this is a benign process and not malignant. Biopsy is so risky when malignancy is present, however (Patients have a poorer outcome,etc.) that I strongly recommend against it. I say the safest course is to simply proceed to an orchidectomy.
“I’d like to keep my testicle, are there any tests besides biospy that could shed light on the subject”
“No”
“but I might not have cancer at all”
“true, however there is no way to tell without biopsy, which carries risks if the tumor is malignant, or removal, which offeres the best outcome if the tumor is maligant. etc.”
I don’t have the particulars here, either, but it doesn’t seem like this patient was told there was another way to handle the situation – and that is a legitimate basis for a lawsuit. He had a right to be fully informed before surgery.
We’re speculating, so I have no idea what was and wasn’t said. I don’t know if the patient understood the possibility that it might not be cancer.
Physicians do not have the benefit of a crystal ball – that’s the point of this case. If we could take a look at a mass and tell you with 100% certainty that it was cancer, we would. Unfortunately, this is rarely the case – the only certainty in medicine is that there are no certainties.
Trust me, most doctors generally would leave testicles alone whenever they can.
A crystal ball isn’t necessary to inform a patient of known possibilities and options.
Having good intentions ( and I certainly believe physicians generally want things to go well for their patients, and want to avoid harming patients) never replaces having an informed patient. Removing an organ without fully informing a patient of options and outcomes can be a legimate cause of action.
On the surface, it seems as if informed consent is the core of the lawsuit. If more info comes out, hope you will discuss.
Kevin, I read the Associated Press article which is really fragmentary– in part because the hospital and doctor didn’t respond. However, I would agree with sarahw. It is most likely that lack of fully informed consent was the culprit here leading to the patient’s complaint. Oh well.. the surgeon will learn for next time! ..Maurice.
Hi Kevin,
As a urologist, I can tell you that a testes should never be biopsied prior to removal if cancer is suspected. Why? It significantly increases the risk of tumor dissemination. Solid lesions in the testes are malignant >95% of the time. Therefore the patient needs to be counseled preop that there is a 2-4% chance that the testes will be removed and not have cancer. The risk of biospy exceeds the risk of removal of a non-cancerous testes. This is standard of care, and the only basis for suit is lack of informed consent.
The information is fragmentary, but considering the comment above, just exactly what were the patient’s options?
There was not an option to have a biopsy anyway despite the risk of tumor dissemination. Inappropriate surgery isn’t an “option” merely because the patient might like the idea better than the appropriate procedure. Choosing a surgery isn’t like ordering something off a restaurant menu.
Biopsy wasn’t on the patient’s menu, excision was.
Or nothing. Patient “autonomy” is not unlimited.
The patient had a choice of testicular excision or nothing. The supposition that there was even an option of biopsy is a false one.
And the patient evidently chose to have surgery. The good news is that he didn’t have cancer.
So now he wants to sue.
It appears that neither the standard of care nor the duty to inform were breached; the patient simply didn’t like his choices. Regretting his decision is understandable, but even after the fact, I have read nothing here to convince me he chose poorly or in ignorance. Not to trivialize the decision to sacrifice an organ, but it is like wanting to have a wager back after the wheel has stopped on your losing color. That is chance, not wrongdoing.
CHenry
Still, no one really knows if the patient was told or not. People don’t always grasp the information when the word “cancer” is involved. I know I wouldn’t. (Just look at my last entry (thebitterchristian.blogspot.com)if you want a good example of someone falling apart in the face of a medical unknown…errr..then again, maybe I don’t really want to admit that one.) Until a person hears both sides of a specific case, a judgement really can’t be made. If the doctor didn’t tell the patient all the details, he’s at fault. If he did, too bad for the patient. I’d rather be short one testicle than battling cancer…of course, I don’t HAVE testicles so that was an easy choice!
My footfalls will be soft, and limited to this observation:
Anyone who has an opinion on the merit or frivolity of this particular suit based on the four paragraph article linked has an uninformed opinion at best.
They should immediately report to the White House to confirm the existence of WMD in Iraq.
Here’s a new post on my blog covering the issues in this situation in far more detail:
The Doctor Is In: Sued for Proper Care
Dr. Bob and the other commenting doctors represent the bizarre, arrogant attitude toward patient autonomy. Whether a biopsy of a testicle makes sense is NOT a medical question. It’s a risk assessment that belongs to the client–and it all depends on how the client values his tesicle. If he values it more than the risk to his life, even discounted by the fact that the solid mass is probable cancer, then BIOPSY makes sense. IOW, if
V(t)(.05) > V(life)(risk of spreading cancer).
The values you plug in do not proceed from medical science.
Doctors should realize this and follow their clients’ wishes.
Dr. Bob said “As a urologist, I can tell you that a testes should never be biopsied prior to removal if cancer is suspected. Why? It significantly increases the risk of tumor dissemination.”
Hmmm. Did he read the study Dr. Kevin. only the abstract was available, but it contradicts (from my understanding) Dr. Bob’s claims. The abstract states “This group was analyzed separately to determine the prognostic significance of needle aspiration, open biopsy, a scrotal approach and tumor contamination. . . . . While not to be condoned, we conclude that deviations from the classical orchiectomy, when followed by appropriate surgical management and close observation, can be of little clinical impact.”
Hmmm. Is it that less radical approaches to castration are possibly safe, but that they cost too much money/involve too much trouble? Dr. Bob–what’s your response?
Bob claims that
“Doctors should realize this and follow their clients’ wishes.”
Despite what you may believe, there is more to the doctor-patient relationship than merely satisfying a patient’s wishes. There is also a requirement to exercise professional judgment and uphold professional standards in a way that reflects the patient’s best interests. If the patient’s demands are contrary to appropriate standards or are against their best interests, those demands should be refused. That might seem unreasonable, but that is the difference between a professional relationship
and a less constrained merchant relationship. The patient isn’t allowed to make the doctor do whatever
he wants, in the name of autonomy, or for any other reason.
If the patient insisted on biopsy and that procedure was unacceptably risky, in the doctor’s judgment, the doctor should decline and advise the patient to go elsewhere. That would tbe the ethical thing to do. And doing that has nothing to do with arrogance.
CHenry
Well, we all know that in our culture the doctors claim to have a different relationship with his client’s than a merchant. But, on what possible principle, other than professional aggrandizement, should there be a difference?
Doctors take money for their services; why are they any different from ANY other occupation. They should do as they’re told and only give their opinions when asked.
Oh, one last thing–who are YOU– to determine “whether the patient’s demands are contrary to appropriate standards or are against their best interests.” A mere doctor whose main distinction is his capacity to memorize the names of bones and muscles.
By definition, what a person wants is in his or her self-interest. That’s the basic premise of Pareto efficiency the undergirds all of capitalist society.
Paternalism went out with the French Revolution–and it’s bizarre the doctors are still in the Middle Ages.
“But, on what possible principle, other than professional aggrandizement, should there be a difference? “
Professionalism and beneficence.
“Doctors take money for their services; why are they any different from ANY other occupation”
They’re professionals, not just merchants. Taking money for their work doesn’t make them professionals, having professional standards does.
“They should do as they’re told and only give their opinions when asked.”
People used to say the same things about women. The were called Chauvinists. This sounds more like the definition of a slave, or at least someone you regard as subservient. Why?
“Oh, one last thing–who are YOU– to determine “whether the patient’s demands are contrary to appropriate standards or are against their best interests.” A mere doctor whose main distinction is his capacity to memorize the names of bones and muscles.”
Well, (I’ll ignore the shrill disrespect) that is part of the ethic of the professional. And if you have such a lack of regard for physicians, no one is making you consult one. I would be the last person to insist that you do. Here is where you do have autonomy.
“By definition, what a person wants is in his or her self-interest.”
I doubt it, people seek and do all kinds of things that are harmful to themselves; that is what kes in business.
“That’s the basic premise of Pareto efficiency the undergirds all of capitalist society.”
So what does that have to do with reality?
“Paternalism went out with the French Revolution–and it’s bizarre the doctors are still in the Middle Ages”
Yes, with paternalism gone, we have only paranoia to comfort us.
“But, on what possible principle, other than professional aggrandizement, should there be a difference? “
Professionalism and beneficence.
“Doctors take money for their services; why are they any different from ANY other occupation”
They’re professionals, not just merchants. Taking money for their work doesn’t make them professionals, having professional standards does.
“They should do as they’re told and only give their opinions when asked.”
People used to say the same things about women. The were called Chauvinists. This sounds more like the definition of a slave, or at least someone you regard as subservient. Why?
“Oh, one last thing–who are YOU– to determine “whether the patient’s demands are contrary to appropriate standards or are against their best interests.” A mere doctor whose main distinction is his capacity to memorize the names of bones and muscles.”
Well, (I’ll ignore the shrill disrespect) that is part of the ethic of the professional. And if you have such a lack of regard for physicians, no one is making you consult one. I would be the last person to insist that you do. Here is where you do have autonomy.
“By definition, what a person wants is in his or her self-interest.”
I doubt it, people seek and do all kinds of things that are harmful to themselves; that is what keepsdetox centers in business.
“That’s the basic premise of Pareto efficiency the undergirds all of capitalist society.”
So what does that have to do with reality?
“Paternalism went out with the French Revolution–and it’s bizarre the doctors are still in the Middle Ages”
Yes, with paternalism gone, we have only paranoia to comfort us.
Ahh, the old clinical trick of responding to criticism by calling the critic mentally ill. Classic, doctor. Do you practice that technique on patients who question your recommendations?
You still haven’t told me, though, if people are so incapable of determining their own self-interest, why can you? In other words, if someone REALLY would want to risk his life for the chance of keeping a testicle, why is that against his interests–if that’s what he really wants?
You say “professionalism and beneficience.” Sorry. The “reality” as you would say is that ALL people are wealth maximizers. Societies that believe people are motivated by higher ideals usually don’t end up too well–remember the Soviet Union?
“Ahh, the old clinical trick of responding to criticism by calling the critic mentally ill”
Can’t say and wouldn’t want to.
” Do you practice that technique on patients who question your recommendations? “
Don’t need to. This is where suggesting a second opinion is helpful.
“You still haven’t told me, though, if people are so incapable of determining their own self-interest, why can you? In other words, if someone REALLY would want to risk his life for the chance of keeping a testicle, why is that against his interests–if that’s what he really wants?”
Really, that is the point of seeking any kind of professional advice, to define a problem, inquire about solutions, rule out bad ideas. Physicians don’t have a monopoly on this; certified engineers, architects, dentists and others work the same way.
The professional doesn’t have to go along with your bad idea just because that is what you want to do.
“Societies that believe people are motivated by higher ideals usually don’t end up too well–remember the Soviet Union?”
Spoken like a true Objectivist!
The problem with your argument is that lawyers and engineers uphold professional duties at odds with their clients (i.e., duty to the court/society’s safety). Thus, it would make sense for them to refuse to go along with a client’s wish.
You, however, said that doctors follow “professional standards in a way that reflects the patient’s best interests.” Yet, you have failed to provide a standard for a patient’s best interest that could trump what he or she truly wants. Indeed, except issues involving akrasia (drug addiction, etc.), I think there is no other standard.
Your comments indicate that such a standard is what YOU want–i.e., you think the guy who’d risk his life for his testicle is nuts. (so to speak)
It seems to me that if I’m paying you, you should do what I want.
(But then again I’m just an objectivist paranoid!) BTW, what does that make you– a Stalinist with delusions of grandeur?
Anonymous has to be the most abrasive (and ignorant) poster I’ve seen on here. He’s the type of idiot who thinks that doing a google search on various ailments is equivalent to being a physician. Thinks that all doctors do is “memorize bones and nerves” lol. People such as him should be forced to rely on google for their health needs– I hope google does surgery!
He sounds like a petulant child, and I would hope that the physician kindly taking his time to respond wouldn’t waste any more of his time. If this dolt REALLY can’t conceive of a standard for the patient’s best interests that is NOT equivalent to “what the patient wants at any time, regardless of medical necessity or efficacy”, then it’s clear that you’re dealing with a dim mind.
And no, anonymous, I’m not a physician (before you accuse me of “paternalism” lol)– I’m a lowly college student.
And is anonymous college student pre-med, by any chance? To use his favorite phrase, LOL.
Yet, he too has not furnished a standard for the patient’s best interests that is NOT equivalent to “what the patient wants.” I’ll give you the odd cases of people who want their healthy arms amputated or drug addicts–but beyond that, I’m not sure one exists. In our society, adults chose what’s best for them. I call it freedom. Must be “dim.”
Remember what this discussion is about: whether doctors should advise patients about a risky surgery that poses the possibility of spreading cancer, but could save a testicle (in rare cases). And, I repeat till I’m blue in the face, whether such a test makes sense depends on how the patient values life with one testicle vs. the risk of death or spreading cancer.
BTW, apparently, biopsies are routinely performed one men who only have 1 testicle & tragically have masses on them. The cost-benefit calculus is different in such a case, but the person in charge of such a calculus MUST be the patient.
As for the college student who looks down his nose at google–well, for what it’s worth, in my experience there are very few experts. We should be grateful to tools that allow us to do some checking ourselves.
And is anonymous college student pre-med, by any chance? To use his favorite phrase, LOL.
Yet, he too has not furnished a standard for the patient’s best interests that is NOT equivalent to “what the patient wants.” I’ll give you the odd cases of people who want their healthy arms amputated or drug addicts–but beyond that, I’m not sure one exists. In our society, adults chose what’s best for them. I call it freedom. Must be “dim.”
Remember what this discussion is about: whether doctors should advise patients about a risky surgery that poses the possibility of spreading cancer, but could save a testicle (in rare cases). And, I repeat till I’m blue in the face, whether such a test makes sense depends on how the patient values life with one testicle vs. the risk of death or spreading cancer.
BTW, apparently, biopsies are routinely performed one men who only have 1 testicle & tragically have masses on them. The cost-benefit calculus is different in such a case, but the person in charge of such a calculus MUST be the patient.
As for the college student who looks down his nose at google–well, for what it’s worth, in my experience there are very few experts. We should be grateful to tools that allow us to do some checking ourselves.
interesting arguments. digging back through the dusty tenets of my medical education, specifically into medical ethics, i think there are two principles at work here – beneficence and patient autonomy.
I would cast the more important argument as beneficence (i.e. doing the right thing for the patient), rather than patient autonomy. I think we are all speculating about consent… i doubt that the patient was taken to the OR without informed consent… but even if a testicular biosy was not offered as an alternative, it doesn’t sound like that option even falls into the standard of care anyway. When did our collective sympathy for balls begin to outweigh standard medical consensus?
Anyway, there is much to bicker about, and the loss of a testicle is just the kind of sensationalism that attracts trial lawyers.
Gosh Dr. Charles, for someone who gets so bent out of shape whenever his own profession is questioned, you don’t hesitate to throw stones every chance, do you?
A mirror should definitely on your next Christmas wish list.
I just want to add that my husband received a testicular biopsy in Dec. 2004. We were told that the preliminary pathology results showed that there was no cancer and the urologist put the testicle back. It wasn’t until March that we were told it WAS cancer and my husband had to go through another surgery to have the testicle removed. My husband has just been diagnosed with stage III testicular cancer and has to undergo chemotherapy. We are going to incur dozens of thousands of dollars of additional medical costs, lose the right to have anymore children, pain and suffering and many, many inconveniences. Boy, we sure wish the tesicle would have just been removed in the first place, just like we assumed it would be.
Check this link:
http://news14charlotte.com/content/health/?ArID=57314&SecID=26
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