Classic post: Man sues over "botched" testicular surgery

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February 2005 – A man sues because a biopsy was not performed prior to testicle removal due to cancer. Frivolous, because standard of care was followed to the letter:

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.

Comments

Pedro
It’s almost like I could be expected to trust someone who’s spent their lifetime learning to save lives and help people rather than someone looking to transfer money from one pocket to another for a sizable commission… wait… no, that’s way too much like common sense. We can’t have that.
Anonymous
This is the textbook definition of a frivolous lawsuit. The lawyer should be disbarred for this. There is simply no chance of malpractice here.
All medical textbooks recommend the removal of the testicle, without any biopsy, because 99% of testicular masses are malignant. Period.
Anyway, if the patient was not sure that this is the best treatment, why did he accept it? Why didn’t he go and ask for second opinions?
“Dear Doctor, I am the one who’s a moron, but you are the one to pay for this. Love, your patient.”
Anonymous
He should have taken out both his balls…if you’re going to get screwed, you might as well get something out of it…
Anonymous
As a healthcare provider, I know the “standard-of-care” requires the testicle to be removed without biopsy. BUT, if the patient was actually “INFORMED” and did not simply sign a form, there would not have been a lawsuit. Too many patients are misinformed, ignorant, or coherced into unecessary risky procedures. “Informed Consent” requires: 1)the explaination and understanding of the recommended test, treatment, or procedure; 2) the likely risks and benefits of the offered treatment; 3) AND, the alternatives… I have seen an 73 y/o woman with terminal breast CA struggle to survive heart surgery and chest tubes to remove fluid from around her heart. When, a simple ultrasound and large bore needle would be standard care to remove the fluid. She was not given ANY alternatives…”The surgeons way or no way”. Well, she died and the doctor sued the family for a $300 out-standing bill. Be Informed
Anonymous
There is one “little” problem with “informed” consent: nobody pays you for the time you waste explaining basic biology to uneducated patients. They want Wal-Mart prices, but Tiffany’s service. Maybe people should start to realize that one can’t have them both.
So, if the patient is on regular we-pay-50-percent-of-what-you-bill-and-even-less insurance, s/he should not have the expectation of getting concierge medicine. And should have at least the decency of not suing that poor fellow that did his job and saw maybe 10% of what the patient paid.
Diora
While I think everyone agrees that in this particular case the doctor was right, and nobody knows for sure if the patient was or wasn’t informed or if more information would’ve avoided the lawsuit – although there is certainly a chance it could have, I do have a big problem with the following statement for the reasons listed below. Not as much how this statement relates to this case, but to its generic implications:
There is one “little” problem with “informed” consent: nobody pays you for the time you waste explaining basic biology to uneducated patients.
1. It doesn’t take any more than a few seconds to say “You have a mass, in 99% of cases such masses are malignant; there is no safe way to say it with a 100% certainty; but you need to understand that if we remove it there is a 1% chance that it’ll turn out that it was benign. If we wait it can spread, the biopsy isn’t an option because in this particular type of cancer it may cause it to spread”. This type of conversation is not likely to take more than 2-3 minutes and doesn’t require any specialized knowledge other than what “percent” means – elementry school math. I doubt it very much that any patient would start asking questions that would require any knowledge of biology; I’d imagine that upon hearing these odds, everyone will agree with surgery without any further questions (and if they don’t, well, you can have him sign some form and let Darwin law run its course).
2. In many cases, the “informed consent” involves stating the odds of different outcomes. Last time I checked, this concept is in the realm of probability and statistics and not biology, basic or otherwise. Doctors don’t have any more knowledge of probability and statistics than those of us who have scientific/technical degrees, yet for some reason doctors think we don’t understand probability even if we come from strong math background. At the same time, I’ve seen many doctors here who don’t seem to know the difference between absolute risk and relative risk – not applicable to this particular case, but definitely applicable to the issue of informed consent. Sorry but one doesn’t even need to know complex math to understand this, just how to calculate percentages and multiply a couple of fractions. I could’ve grasped this concept in the 3rd grade of elementary school and so could some other kids in my class. I am always amazed that doctors always assume we understand less math than they do, even if we come from strong math background.
3. In cases where decision a patient can make is based on biology, one can always say “based on what we know about this desease, these are the choices …” or something like that. Very few people would ask questions pertaining to basic biology if they don’t know anything about it.
4. I’ve never had a problem with the length of the office visit. 10 minutes is plenty if spent well. It is the quality of time not quantity that counts.
5. How could lack of time justify the example that anon at 7:01 gave?
Anonymous
When there is the possibility of an quick buck at the expense of “rich” doctors, this is always going to be a problem…just save up enough money to get out of the field…
Anonymous
Diora,
I was not talking about 2-3, even 10 minutes of explaining. This is a life-changing surgery; of course the patient needs a lot of information. I was “bitching” in general, because I am so disgusted by frivolous lawsuits like this one. We all pay dearly for them.
I am a doctor and I know that I have to be paranoid all the time, so that I won’t lose in one day what I have earned in years of HARD WORK. I have to order expensive exams I would have never ordered routinely in the European country I come from. There are billions wasted here, and not on salaries, but on $100/pill meds and $1000+ useless investigations. Because of greedy people who sue their doctor even for doing their job (like here), we all have to pay (tens of) thousands extra, during our lifetime.
Not only must the American patients have the latest drug, even if it’s only 10% better than the others which are 100 times cheaper, but they will sue you out of existence if you dare to put them on the cheaper, older one, which doesn’t offer surprises in side effects.
By the way, I welcome the companies which try to create databases of abusive patients. We need these virtual “credit histories” for both doctors and patients. If lenders/insurers are allowed to charge more if one has bad credit, so should do hospitals. Maybe then these absolutely frivolous lawsuits will stop then (like one doesn’t submit insurance claims for every little scratch on the car, knowing that it will result in increased premiums).
Anonymous
Doesn’t the average case take 2-3 years, and 3 out of 4 plaintiff’s lose at trial? And don’t you have to have a pretty severe injury to get much money?
How exactly is that a “quick buck”?
Anonymous
It’s a quick buck because people are often looking for a settlement, especially on the frivolous cases.
Diora
I was “bitching” in general, because I am so disgusted by frivolous lawsuits like this one. We all pay dearly for them.

I see, and I do agree with this statement. I was simply commenting on the not-enough-time-for-informed-consent comment as it is applicable to generic situations, not just this one. Having grown up in a country where informed consent was non-existant, I have very strong feelings about it.
A friend of mine – who is also from Eastern Europe as I am once called litigation an “American national sport”. This is a bit off-topic, but one thing that immigrants notice immediately is the number of prohibitions – don’t swim there, don’t do that, etc. And product warnings that get more idiotic every day. There is a price for all frivolous lawsuits – whether it is in extra money or in reduced freedom (strange to talk about less freedom coming from Eastern Europe, but if you go to any of the lakes there you can swim wherever and whenever you want and if you swim too far or skate on thin ice and drown – well, one stupid person less in the world, warning for others). I do realize that doctors are much more vulnerable than most and that cost of frivolous litigation is higher in medical field. But it is not negligible in other businesses as well.
Anonymous
“It’s a quick buck because people are often looking for a settlement, especially on the frivolous cases.”
How many med mal cases have you settled with these insurers who pay out really quickly on meritless cases?
Anonymous
Diora,
Your friends in Eastern Europe live in countries where they cannot rely on the rule of law. They don’t get to see a jury of their peers when someone else’s negligence harms them.
I would be careful about comparing unfavorably our system with any other until you’ve seen those in action.
As for most vulnerable to “frivolous” litigation, physicians are the least vulnerable of any business because the barriers to filing are higher than most and the statute of limitations shorter.
Product warnings exist because too often, in a rush to sell more, manufacturers don’t adequately disclose the risk. See Vioxx for example.
Anonymous
Diora you are becoming more distasteful by the day. So there are no warnings of anything but you just assume that everyone should know all these things? As is evidenced by your remarks of “Anyone can swim anywhere and if they drown.. well then…one less stupid person in the world.”
You also discriminate against ill people and obese people.
Are you related to crazy doc?
Diora
So there are no warnings of anything but you just assume that everyone should know all these things?
The things listed in the link I provided, like the fact that a scooter moves when used or that you shouldn’t put your fingers into a food processor while it is working? I should think so, don’t you? I’ve never said – any warnings of any kind. I did say that side effects listings are important, for example.
“Anyone can swim anywhere and if they drown.. well then…one less stupid person in the world.”
This is a simple descriptions of how things work outside of the US.
Have you ever travelled to Mexico, for example or the South of France? There are no restrictions, is it an invitation to swim as far as you think you can? If you overestimate your ability and ignore the possibility of currents and sharks, is it the hotel’s fault that something happens or yours? It can happen to me too – I can do stupid things sometimes, and yes, if something happens, it’d be my fault, but I still want to have the right to do these stupid things.
You also discriminate against ill people and obese people.
Where did you get this from?
I’ve never ever said anything against ill people; pray show where I did. I’ve never been rude toward obese people either nor called anyone names. Give a single example that would indicate discrimination.
Anonymous
“The public has to understand that medicine is as much art as science – there are many cases where there are no “right” answers.”
I love this phrase. Hey, no guarantees, we don’t have any control anyway so you can’t hold us responsible, but make sure to pay us more!
Anonymous
I love this guy…he hates doctors so much he always criticizes them, then when he gets a cough or cold he goes running to the doctor or hospital…what a hypocrite…
Anonymous
I start reading these and I almost always agree with teh physician and then without fail, comes the nasty doctors remarks and my mind gets completely changed. If you are this way pal because you think being such an ass will protect you, you should really reevaluate.
I can see folks who have never had an inclination in their life to sue anyone, wanting to get a piece of you. Man, you just make people hate you. Why did you become a doctor and why don’t you get out of it?
Anonymous
I make ten times the amount of money you make, why would I get out of it? Thanks to Kevin, I learned about defensive medicine and now I am safe; It’s not too great for you, however…
Anonymous
dear anon, try this for frivolous.
….my mother, age 70 and god knows why she felt she should live to be 97 like her parents = in relatively good health and die in her sleep- but that’s beside the point….
Underwent a preventative open heart surgery in order to get clearance to get a back fusion for stenosis. Well, her brilliant physician SAID he performed four minor grafts. She died four days after surgery, after spending three days in afib – following protocol *give it a while to straighten out, if not medicate it, if not then shock her back into a normal rhythm.*
Day four she codes and her cause of death on her death certificate is ‘natural causes’ (of course).
Shortly before I had mom ext’bd I had the pleasure of trying to understand some foreign version of the English we hear on the CBS news – and on his third repetition understood him finally as saying
“your patient was old, fat, sometimes these things happen, we don’t know what exactly went wrong, sometimes it doesn’t go as planned.”
I was a little freaked, but after photographing my mother’s mutilated body, I discretely arranged for her to be sent out for autopsy.
I had nothing to gain but understanding into this mysterious ‘sometimes these things happen’ explanation of her death.
Her surgeon said he put in four grafts. Her pathologist, only found three, ironically those three leading to her RCA ….which was left untouched w/ 90% stenosis….not thrombosis….but the same 90 percent stenosis it had when he took her heart OUT and put it back IN.
So pretty much from the time they took her off bypass, she was a sitting duck.
So, frivilous? I don’t know. You tell me.
My folks are those blue blooed self insured that write checks for everything – - so I really had to laugh when the doctor expected payment for doing shoddy work. I keep looking back on my work history, and can’t remember the last time I botched a job and got paid anyway.
I kept hearing….’well, she was 70…’ and I have to wonder to what degree does ageism play in the significance of ‘getting it right’ in the medical field?
Would it have mattered more if my mom were a chubby 42 year old loan officer with a wife and three kids??? Or a 60 year old golf pro?
This case went straight to mediation and settlement. The doctor didn’t even waste his time doing otherwise. There was no defense. It was an “oops!! we forgot THAT RCA graft”
My parents were wealthy – we would have gladly cut her surgeon a check for 400k to do his job right that day – in addition to the medical bill. Maybe that’s what it’s coming to nowdays – slipping in an extra 100k before the surgery to make sure things go right. (I do this at the car wash to make sure they clean the carpets extra carefully – even when it’s supposedly paid for in the total cost.)
This story is not unique- except that I dared send my mom out for an autopsy. I’d bank so many medical mistakes – critical errors are covered by the peace of mind that physicians get from knowing that 99% of grieving families would not do the same.
On that front – the malpractice of medicine is a gold mine. What if everyone wanted to know EXACTLY what killed their loved one?
What if the practice of medicine were put to the TEST of the pathologist a little more often – or in a random sample to measure the quality of the care/surgery received compared to the outcome?
It’s a thought.
In the meantime, I’d tell anyone who gets this type of explanation for death? to quietly send their loved one out for an autopsy.
While doctors deserve respect – the survivor mentality should be to have good faith, try to trust – but verify that which can not be rationally explained – and to know that “well…she was 70 and chubby” is never a good reason to die.
Sign me, Somewhere in Seattle

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