By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: In 2014, a patient underwent surgery to remove a mass on his scrotum. After discovering the mass was larger than expected, the physician removed a greater portion of tissue than the patient wanted. The physician did not obtain informed consent from the patient (who was under anesthesia) or of the dedicated medical proxy. The invasive surgery caused severe side effects and irreversible injuries. The patient filed a lawsuit alleging malpractice and medical battery.

The trial court ruled in favor of the patient and awarded $9.2 million in noneconomic damages. On appeal, the defendants argued the award must be reduced to conform with the state’s $250,000 cap on noneconomic damages. However, the appellate court affirmed the trial court’s decision and stated certain medical battery claims are exempt from the statutory maximum.

Background: In 2014, a 41-year-old man discovered a small mass on his scrotum. The patient sought medical attention, stating he experienced some mild scrotum pain. He explained he did not experience dysfunction or pain in his penis, and reported he was sexually active. After consulting with a physician, the patient agreed to undergo surgery to remove the mass and send it for a biopsy. The surgery was to be performed under general anesthesia, but was supposed to be minimally invasive as an outpatient surgery. The patient was informed as to the possibility of infection, swelling, discomfort, and injury to the surrounding tissue.

The physician described the surgery as requiring a small incision to remove the mass, which was expected to be approximately 1 cm. The patient completed the informed consent forms and identified his ex-wife as his medical proxy to make medical decisions for him while he was under anesthesia, if necessary. On the day of the surgery, the patient’s ex-wife was present at the hospital and remained available throughout the procedure. As the physician made the incision, he discovered the mass was much larger than originally expected and that it spread to the patient’s penis. The physician observed that the mass was vascularized and involved the patient’s nerves, and he believed the mass was malignant.

Instead of taking a portion of the mass to send to biopsy, the physician decided to remove the entire mass, which measured 8 × 5 × 2.5 cm. The physician knew the procedure would render the patient impotent, but nevertheless decided to proceed. Furthermore, the physician admittedly failed to read the forms with the designation of the patient’s medical proxy. The physician allegedly was unaware the patient’s proxy was present at the hospital and did not obtain her consent. The mass turned out to be a benign cystic lymphangioma.

A few weeks after the surgery, the patient sought emergency medical treatment for an infection that caused boils with drainage and causing excruciating pain. Additionally, the patient became completely impotent after the surgery and suffered from constant pain internally at the base of his penis, loss of feeling, and difficulty urinating. After two reconstructive surgeries, the patient regained some function in his penis and claimed the level of pain was tolerable. However, touching or moving the penis caused severe pain, and sexual intercourse was extremely painful.

The patient brought a claim against the physician and the hospital, alleging medical malpractice and medical battery. The defendants denied liability. A jury awarded the patient $9.25 million in noneconomic damages. The defendants appealed the award, arguing the state’s maximum on noneconomic damages limited the permitted award to $250,000. However, the appellate court affirmed the award, as medical battery is legally distinct from medical malpractice, and the maximum only applied to malpractice causes of action.

What this means to you: The most important lesson for physicians and care providers from this case is to always receive fully informed consent for the actual procedure performed. Receiving consent beforehand is a prerequisite, but if the circumstances change, or if a modification to the procedure appears appropriate, seek and receive consent again. Fully informed consent, wherein the patient is advised of the details of treatment, the potential risks, and possible alternative treatment options, is critical to preventing malpractice claims. While this is a common practice, asking a patient to read, understand, and sign consent forms protects from later claims by a patient who may, years down the line, argue he or she was not informed of the risks.

Another interesting legal lesson from this case is the nuanced distinction between a medical malpractice cause of action and a medical battery cause of action. Malpractice occurs when a physician fails to use the level of skill, knowledge, and care a reasonably careful physician would use in the same or similar circumstances. Medical battery occurs when a physician performs a procedure without consent, or the patient consented to one procedure but the physician performed a substantially different surgery. It is thus possible for a physician to act negligently by failing to adequately disclose risks and alternatives, but the patient nevertheless consents to the procedure. By contrast, if the patient provides no consent or the physician diverges from the agreed-upon procedure, that is medical battery.

A single set of facts may constitute both malpractice and battery, and it can be a fine line to argue whether the procedure “substantially” differed from the consent provided. Expert testimony may prove critical to persuading a jury that any variance was minor and not substantial. This distinction is critical because, as demonstrated in this case, if the jury determines the deviation to be substantial, it may constitute battery and not be subject to the statutory maximum. If the difference is minor, then statutory maximums apply, leading to a difference of an adverse verdict of $250,000 or exponentially more, as this $9.25 million award reveals.

For this reason, some courts have clarified the cap on noneconomic damages should not be applied as a clear-cut rule where only causes of action brought under the standard of negligence would fall within its scope. Rather, a patient’s claims must be analyzed based on the facts of the case. In this case, the court of appeals elaborated on this concept, providing that where a physician merely exceeds the scope of the consent provided by the patient, the claim will be subject to the $250,000 noneconomic damages cap. However, in cases in which the medical professional obtains consent for one procedure but performs a completely different one, the breach of the patient’s consent will constitute medical battery and will be exempt from the limitation on damages.

Here, the court found the patient’s cause of action under negligence was clear in several respects. First, the physician admitted to failing to fully read the consent form, which led to his lack of awareness as to the patient’s medical proxy, who was in the building at the time of the procedure. Secondly, the physician’s decision to remove the entire mass was negligent because the physician testified the risks to the patient’s urethra, even if the mass was malignant, would occur weeks, if not months, after the surgery. Under these circumstances, waiting one week to perform a biopsy would have been justifiable and safe. The physician also expressed concern that scarring from the first surgery may have caused problems if the mass was removed at a later stage. However, the physician admitted this opinion was speculation. Therefore, the court affirmed the finding of malpractice.

Regarding the medical battery claim, the court stated these events clearly constituted an episode exempt from the noneconomic damages cap because the physician did not merely exceed the consent he had obtained. Rather, he performed a completely different and separate procedure to which neither the patient nor his proxy had consented. Specifically, the patient agreed to a short outpatient procedure during which a small, 1 cm mass would be removed from his scrotum to obtain a biopsy. Instead, the patient underwent a much more invasive procedure, during which a much larger mass was extracted from both his scrotum and his penis, rendering him impotent and causing him severe physical and emotional pain. Accordingly, the court confirmed the physician committed both malpractice and battery, subjecting him to damages in excess of the statutory maximums.


  • Decided on Sept. 10, 2020, in the Court of Appeal of the State of California, Fourth Appellate District, Case Number E071146.