On January 23, 2014, an Oregon jury found in favor of the defendants in a medical malpractice lawsuit that claimed that a little boy’s testicles were negligently lost during surgery to address his undescended testicles. The twelve-person jury deliberated for about six hours after a six-day trial before determining that the surgeons did not lack the required permission from the child’s parents to employ a certain surgical technique that they used.
The jurors voted 10 to 2 that the hospital had obtained the appropriate informed consent from the parents for the surgery, and they voted 9 to 3 that the hospital did not commit a battery against the little boy by failing to obtain consent for the procedure.
The now 5-year-old child was 11 months old at the time of the surgery in 2009. The parents extensively researched the best surgical option for their little boy’s condition and came to the conclusion that the best surgery was actually a two-surgery technique that would minimize the risk of their child losing his testicles (a known risk of surgery for undescended testicles), for which they provided written consent to the hospital and the surgeons one month before the surgery.
The surgeons allegedly determined during the surgery that a one-surgery technique would be appropriate and in the best interests of the child. The hospital and surgeons claimed that they had obtained verbal consent to use whatever technique they determined in their professional assessment during the surgery would be in the best interests of the child; they blamed an untrained resident for failing to explicitly state in the written consent signed by the parents that the surgeons may decide to use the one-surgery technique after assessing the location of the little boy’s testicles during the surgery.
The defendants’ lawyer claimed that the loss of the boy’s testicles was a “very unfortunate incident that resulted from the inherent risks of surgery.” About 2% to 6% of boys are born with undescended testicles, which often descend on their own over time but may require surgery to relocate them into the scrotum (undescended testicles increase the risk for developing cancer later in life).
The parents were seeking $1.4 million in compensation for medical expenses that include the twice-monthly testosterone shots their child will need for the rest of his life beginning at about age 11, and additional compensation for their son’s noneconomic damages resulting from the loss of his testicles.
When some people hear that a serious complication suffered by a patient undergoing a medical procedure is a “known risk of the procedure,” they conclude that it’s “just bad luck” that the complication occurred for which the medical provider should not be held responsible and no compensation should be paid to the victim. However, everyone must appreciate, understand, and respect that “a bad result” may be due to medical negligence for which the medical provider who failed to meet the standard of care must be held responsible. (For example, the possibility of acquiring an infection as a result of surgery is a known risk of surgery, but no one would argue that a medical technician who improperly sterilized surgical instruments before surgery that caused the serious surgical infection should not be held responsible for the unnecessary and avoidable harm that the medical negligence caused.)
If you or a loved one may have been injured (or worse) as a result of medical negligence in Oregon or in another state in the U.S., you should promptly seek the legal advice of an Oregon medical malpractice attorney or a medical malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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