Because medicolegal challenges are more likely in genital surgery, the Editors invited Mr. Dopf to provide our readership with some general context on medicolegal principles.

Medicine is an art and a science. No doubt, surgical care can lead to patient dissatisfaction or injury, even when the surgeon does his or her best to achieve a satisfactory and successful outcome. The result can be that the patient (“plaintiff”) sues the surgeon (“defendant”) for medical malpractice.

Elements of a Surgical Malpractice Lawsuit

A patient-plaintiff who sues a defendant-surgeon for medical malpractice must prove 4 elements to succeed in a lawsuit: 1) duty, 2) breach of duty, 3) proximate causation and 4) damages. The physician-patient relationship is consensual in nature. A surgeon’s duty of care owed to a patient is defined by the scope of surgical care and treatment undertaken by the surgeon.

The surgical community sets the standard of care that a surgeon owes to the patient. One court has stated, “A physician’s duty is to provide the level of care acceptable in the professional community in which he practices … He is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment….”¹

When a surgeon fails to live up to the applicable standard of care, then the surgeon has breached a duty of care owed to the patient. That breach is a “departure” or “deviation” from the standard of care.

A plaintiff must show that the surgeon’s breach of a standard of care proximately caused plaintiff’s claimed injuries and damages. Proximate cause is a legal term meaning that defendant’s breach of duty was a substantial factor in bringing about the injuries and damages.

Finally, a plaintiff must prove the damages that he suffered as a result of defendant-surgeon’s departure or deviation from the standard of surgical care. Damages typically include pain and suffering, such as scarring, disfigurement and impotence. The patient may have had to undergo further surgical treatment, including removal of an implant, to correct damages caused by defendant-penile surgeon. Plaintiff may also sue for economic damages, such as medical expenses and loss of earnings and earning capacity caused by the malpractice.

Experts in Surgical Malpractice Trials

Medical malpractice trials have been called “battles of the experts.” When each side produces medical or surgical experts to state their client’s position, the jury has the job of deciding which experts are more believable.

A trial is required where both plaintiff and defendant have medical experts willing to testify on behalf of their client’s position. In a case where plaintiff claimed that defendants negligently performed penile augmentation surgery, defendants’ pre-trial application to the court (“motion”) to dismiss the complaint was denied because “both parties have submitted expert medical evidence sufficient to support their respective conflicting positions. The parties’ submissions make clear that there are material disputed issues” as to whether alleged failures on the part of defendant who performed the surgery proximately caused the patient’s erectile dysfunction, ruled the court.²

The trier of fact, whether a jury or a trial judge, may find that plaintiff’s expert’s opinion may be “entitled to decidedly less weight” than that of defendant’s expert opinion where plaintiff’s expert’s experience in penile surgery is “extremely limited.” That expert may have had a urology practice that treated few patients with penile problems, and the expert may have had limited experience in performing penile surgery, as compared to defendant’s expert.³

Informed Consent

In addition to suing for surgical malpractice, plaintiff typically alleges that the surgeon failed to obtain plaintiff’s informed consent to surgery. A surgeon is required to disclose to a patient alternatives to proposed surgery as well as reasonably foreseeable risks and benefits involved, so that the patient can make a knowledgeable decision.

The surgeon needs to disclose material risks of the procedure. In a case in which a patient with Peyronie’s disease underwent surgery for insertion of an inflatable penile prosthesis, the patient suffered postoperative gangrene with resultant near-complete amputation of his penis. A verdict for plaintiff was affirmed on appeal. “There was evidence that defendants did not discuss the risk of infection with plaintiff and did not give plaintiff any details about the failure rate of the prosthesis … Plaintiff testified that he would not have consented to the surgery if he had known of all of the material risks, including the failure rate,” observed the appellate court.⁴

A written consent form is helpful to a surgeon in proving that the patient gave an informed consent. However, the written consent form is not decisive on its own. In a case arising from defendant’s performance of penile augmentation surgery, the court refused to dismiss the complaint prior to trial. Plaintiff signed a consent form, which indicated that it is “possible” that plaintiff may experience decreased sensitivity, decreased angle of erection or sexual dysfunction. The judge noted that “the form clearly downplayed these risks by, for example, stating that any sexual dysfunction would ‘most likely … be temporary.’ Nor did the form disclose the risk of permanent sexual dysfunction or internal scarring … [which] was the cause of plaintiff’s post-procedure erectile problems. In addition, plaintiff’s deposition testimony directly contradicts defendant’s assertion that he verbally advised plaintiff of the reasonably foreseeable risks of the procedure, and he further alleges that the consent forms he signed shortly before the procedure commenced were never explained to him. Finally, plaintiff’s expert addressed the signed consent form by stating that ‘the authorization for penile augmentation obtained by [defendant-surgeon] is misleading and minimized the risks of the procedure. Simply having [plaintiff] sign a consent form without explaining the risks of the procedure to him is not a proper informed consent.’…”⁵