Medical Malpractice Informed Consent Lawsuit in Kentucky: Are Punitive Damages Warranted?

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened – right or wrong – was the doctor did what he thought he should to save the patient’s life when he found cancer during the operation.

I won’t prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision “may necessitate additional or different procedures.” But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor – right or wrong – making a decision to try to save a patient’s life.

One thing John McCain does that drives me nuts is to vilify everyone who does not agree with him as “corrupt” or as “violators of the public’s trust.” I think this lawsuit is a cousin of that mentality. We can have an honest conversation about whether the doctor was negligent in this case. But for an award of punitive damages, Kentucky law requires that the plaintiff show “clear and convincing” evidence that a defendant acted with oppression, fraud or malice. Is there even a scintilla of evidence that that is what occurred here?