ST. PETERSBURG TIMES, St. Petersburg, Florida, 22 June 2003.

$250,000 is not enough

DYCKMAN E-mail: Click here
By MARTIN DYCKMAN, Times Columnist
© St. Petersburg Times
published June 22, 2003

TALLAHASSEE - This is about a boy named Jeffery who suffered a terrible injury at the hands of inexperienced doctors. It happened 19 years ago in another state but the story has a lot to say about Florida's current medical malpractice dispute.

If you are squeamish, please stop here.

Jeffery was 2 years old when he underwent a therapeutic circumcision that went horribly wrong. A first-year family practice resident physician being supervised by a third-year surgical resident used a high-frequency electronic cutting tool instead of a conventional scalpel. There was too much current, too much heat. "Eventually," wrote a Louisiana Court of Appeal, "his external penile tissue sloughed away, leaving him with no visible penile tissue. In simple terms, his penis was gone."

This happened at a charity hospital for which the state was responsible. Jeffery's father sued the state and the manufacturer, exposing a cascading chain of negligence. Among other things, the senior resident had never asked her supervisors whether it was safe to use the device for a circumcision (it wasn't) and the hospital only selectively enforced its requirement that a member of the medical school staff or a certified general surgeon oversee all elective surgery.

The main question before the appeals court was how much the state should pay: $2,750,000 recommended by the jury or $1,730,000 favored by the judge. The three appeals judges found the larger sum more reasonable. Only $118,000 was for past and future medical expenses. The rest was for pain and suffering. The judges explained why.

"The record shows that Jeffery suffered greatly as the tissue of his penis withered away from the burn. For days he screamed "it hurts.' There was nothing that could be done to save the tissue. Jeffery now has no visible penis tissue left. The medical testimony presented two future alternatives. The first is possible reconstructive surgery when he reaches puberty . . . to make the stump of the penis appear more prominent . . . Jeffrey's second alternative is for a sex change operation.

". . . Jeffery's psychiatrist testified that the child will need intermittent psychiatric counseling to help him cope with crises as they occur. She said that there is a high possibility his loss will affect his self-identity . . . that Jeffery will undoubtedly experience anger and frustration as he grows older and probably will direct that anger against his parents.

"The usual guidelines - pain and suffering, disability, loss of income, future medical - are inappropriate to measure this loss. Pain, the doctors say, though intense at first, is now gone. Future medical treatment and expenses could be enormous, but no one knows for sure. The urination function is accommodated by a still-working, albeit shorter, urethra. As a physical person who can eat, drink, sleep, work, think, Jeffery probably can meet objective standards for normal performance.

"It is elsewhere that his loss lies. Sexual pleasure, procreativity, marriage in any normal sense, these things will never exist for him. The suffering of deprivation, both physical and mental, that will accompany him throughout his life can be only vaguely imagined. What will his puberty be like? Where will he go to escape the cruel and ribald jokes of his comrades? For that matter who will be his comrades? Into what corner of his dark cell will he seek refuge when the natural urgings of his body wage battle?

"There is a suggestion in the evidence that he can be changed into a woman. As a means of mitigating damages in this case, we view this prospect as pure speculation. If it is realistic to imagine that he may find a new life in this way, it is just as realistic to speculate that after the sex change, he may wish it had never been done . . ."

If something like this were to happen to a child in Florida under the law as Gov. Jeb Bush wants the law to be, the court could award only $250,000 for his pain and impaired life. That is far less than it typically costs a law firm to prepare and try such a case, so one practical - and intended result - of Bush's draconian cap would be to keep victims out of court. Much gross medical negligence would go unpunished.

The governor is rightly concerned by the high insurance premiums that are driving Florida doctors out of practice and out of state. But I wonder why such an intelligent man is willing to trust the insurance industry's word for why this is happening. And I worry that he seems to care so little about potential victims like Jeffery.

Money judgment, though it is as old as the Bible, is an imperfect remedy for any injury. But it's the best we have.

Louisiana has a $500,000 ceiling on non-economic damages that apparently did not apply in such a severe case. Similarly, the $500,000 cap reluctantly approved by the Florida Senate would permit exceptions of up to $2-million (or $6-million in rare cases where doctors, hospitals and manufacturers were all held liable) for catastrophic injuries including loss of reproductive function.

The governor thinks that's still too generous. Do you?

(File prepared 23 June 2003)