Burton Bentley II, M.D., FAAEM
CEO, Elite Medical Experts
A California man was awarded $9.27 million in a landmark medical malpractice case that exceeded the state’s $250,000 cap on noneconomic damages. The plaintiff theory hinged on lasting damage caused by a medical procedure that was done without consent or knowledge, and the verdict has broad implications in California and other states with caps on noneconomic damages. Attorney David Ricks consulted with Elite Medical Experts to identify and select the expert witness who testified about critical facts in this landmark case.
Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine
In 2014, Keith Burchell was 41 years old when he underwent what was supposed to be a simple, outpatient procedure to remove a 1 cm scrotal mass for testing. His surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected and, believing it was malignant, performed a substantially more invasive procedure than planned without consulting either Burchell (who was under anesthesia) or his designated medical proxy. Dr. Barker removed an 8 x 5 x 2.5 cm mass from both the scrotum and the penis, but it proved to be a benign lesion known as a cystic lymphangioma.
As a result of the unauthorized procedure, Burchell suffered permanent and irreversible serious side effects. He sued Dr. Barker and his employer, Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (FPS), alleging professional negligence and medical battery. A jury awarded $4 million in past noneconomic damages and $5.25 million in future noneconomic damages. An additional $22,346.11 in economic damages brought total damages to $9,272,346.11.
FPS appealed, arguing, among other claims, that the award should have been reduced to the $250,000 limit for “any action for injury against a health care provider based on professional negligence” pursuant to California’s Civil Code section 3333.2(a) of the Medical Injury Compensation Reform Act of 1975 (MICRA). Despite the statutory cap imposed under MICRA, the California Court of Appeal, Fourth District, Division Two upheld the award for damages (see, Super. Ct. No. CIVDS1503214).
Burchell’s case against the defendant
When Burchell sought care, he was experiencing scrotal pain but he was sexually active without complaints of pain, deformity, or dysfunction of his penis. He agreed to undergo surgery which was described on the consent form as a “local excision of a scrotal mass.” The common risks and side effects were listed as bleeding, infection, and possible injury to surrounding tissue, and Burchell was expected to be released the same day and “back on [his] feet” the next. During surgery, Dr. Barker discovered that the mass appeared to be invading the nerves, blood vessels, and erectile chambers of the penis and believed it to be malignant; he also knew that even a benign tumor could be harmful. He decided to remove the entire mass, even though he knew that more extensive surgery would render Burchell impotent through the “immediate loss of the erectile chambers” and damage to the nerves and blood supplying the penis. After surgery, Burchell had to be hospitalized for several days for “observation and pain control” and, after going home, had to seek emergency treatment for an infection that was causing “excruciating” pain. The infection was cured, but the surgery caused lasting harm. Two reconstructive surgeries have only partially alleviated these problems. Burchell presented evidence that, in addition to the physical consequences of the surgery, he has suffered mentally. He testified that his “world had been turned upside down.”
While the state caps non-economic damages for medical malpractice, there is no limit for medical battery. “Because California’s limitation on damages for a medical malpractice claim is so egregiously low, I knew it was critically important for us to show the jury and the judge that this claim went well outside of the medical negligence claim and was, in fact, a medical battery on Mr. Burchell,” said David Ricks of David H. Ricks & Associates, attorney for the plaintiff-appellant. “I knew a finding of medical battery was the only way we would secure a fair and just resolution of this claim for our injured client.”
“When I heard the verdict, specifically, that the jury found in favor of our client for medical battery, I felt an overwhelming relief that our client was going to get a just award, not limited by the arbitrary medical malpractice cap on damages,” Ricks said. “When I heard the amount the jury awarded, I was very happy for my client to know that the jury understood the seriousness of his injuries and properly compensated him for what had been taken from him by the defendant. Patients can only control the consent they give to the doctors when they enter surgery. The doctors need to respect that consent and not unilaterally expose a patient to risks not agreed to in advance by a patient.”
Why the cap didn’t apply
Although MICRA expressly applies to actions based on professional negligence, additional causes of action, including medical battery, often arise out of the same facts that gave rise to the medical malpractice claim. “Indeed, a plaintiff hoping to evade the restrictions of MICRA may choose to assert only seemingly non-MICRA causes of action,” the Court of Appeal opinion read. “When a plaintiff does so, the court must determine whether a cause of action framed as something other than medical malpractice is nevertheless based on a health care provider’s professional negligence and therefore subject to MICRA’s damages cap; the answer is sometimes yes and sometimes no. The focus of the court’s analysis must be on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.”
California Supreme Court has ruled that the MICRA limitation on noneconomic damages does not apply to an “intentional tort” in which a physician obtains the patient’s consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff never consented.
“Here, Burchell’s medical battery claim falls squarely [into this] category of medical battery,” according to the opinion. “Burchell alleged and proved to the jury’s satisfaction that he consented to one treatment, and Barker performed a substantially different treatment for which Burchell gave no consent, in the absence of any emergency that would justify doing so. We conclude that MICRA’s limitation on noneconomic damages does not apply here.”
Given the ramifications of the appellate court’s decision, legal scholars anticipate that the next stop may be the state’s Supreme Court. In the meantime, the Burchell ruling gives credence to the tort of medical battery — and perhaps other non-negligence torts — as a viable claim for exceeding non-economic damage caps in medical malpractice cases. Attorneys from both sides of the bar will be watching closely.
Lead attorney David Ricks reflects on the role of Elite Medical Experts
Expert witnesses are integral to medical malpractice and medical battery cases because only they can analyze the complex medical issues that intersect with the law. In this case, the plaintiff-counsel brought Elite Medical Experts to shed light on the medical aspects of the case. “I have used Elite Medical Experts’ services for years,” said attorney David Ricks. “[Their CEO] Dr. Burton Bentley really has helped me in understanding my case and issues. The staff has worked hard to find us the right experts. They often go above and beyond. I appreciate their services to me and to my clients.”
About Elite Medical Experts: Dr. Burton Bentley II is a board-certified Emergency Medicine specialist and the CEO of Elite Medical Experts. Elite works with legal teams to develop strategic insight on matters at the intersection of Medicine & Law. Elite also aligns nationally recognized Professors of Medicine and Surgery as subject matter consultants and expert witnesses.
