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Medical Battery versus Medical Malpractice


California was the first state in the U.S. to place caps on damages in medical malpractice lawsuits. Today, those caps are still on the books. Roughly half of all states place caps on “noneconomic” damages in medical malpractice cases. Florida, once one of them, ruled that the law was unconstitutional several years ago.

When the medical malpractice laws were on the books, many civil defense attorneys found themselves in the absurd position of demanding that their clients be accused of medical malpractice as opposed to general negligence. This was because the imposed caps and other barriers placed on medical malpractice lawsuits made them more difficult to litigate.

Now, there is an interesting lawsuit in California that makes a distinction between medical malpractice and medical battery. The question is: Do medical malpractice caps apply to cases of medical battery? Below, we’ll discuss the situation.

The Lawsuit 

The patient, Mr. K, was being treated for a mass that was growing on his scrotum. His doctor, Dr. B, recommended that the mass be removed and biopsied. The patient was reluctant, but eventually acquiesced. Dr. B had Mr. K fill out two surgical consent forms. The first consent form described the procedure as a  “local excision of a scrotal mass, possible cystoscopy.” The other consent form had to do with his medical proxy.

During the surgery, Dr. B realized that the mass was much larger than he initially realized. Fearing that the mass could interfere with the patient’s urethra, Dr. B ended up removing the entire mass including parts of the patient’s penis. In Dr. B’s notes, the doctor indicated that he considered doing a simple biopsy, but opted for removing the entire mass.

After the biopsy was completed, the extent of Dr. B’s error became a serious problem. The mass was benign with no evidence of malignancy. The patient woke up to find that some of his penis was missing. Both he and his wife were devastated.

During the next several years, Mr. K would have reconstructive surgeries to fix his penis, but he was left with no feeling in that area, which is permanent. Eventually, his marriage ended.


An attorney for Mr. K sued for medical negligence and medical battery. Dr. B had allegedly failed to obtain consent from Mr. K or his wife prior to excising the mass. Dr. B didn’t know if the mass was malignant or benign before removing it. The plaintiff argued that Dr. B not only committed medical negligence for performing such an aggressive procedure, but he had also committed medical battery for performing the procedure without the patient’s consent.

While medical malpractice damages are capped, the court ruled that there was no cap on damages related to medical battery.

Talk to a St. Petersburg  Medical Malpractice Attorney Today 

If you’ve been injured by the negligent practice of medicine, call the St. Petersburg medical malpractice attorney at Masterson & Hoag, P.A. today to schedule a free consultation and discuss your case with us.




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