Posted on Oct 26, 2020


SAN BERNARDINO, CALIFORNIA (September 2020)Attorney David Ricks of David H. Ricks & Associates recently had a verdict upheld in a 2018 medical negligence and medical battery case he won for his client, who was awarded $9.25 million in non-economic damages after an unconsented-to surgical procedure on his penis left him with permanent and irreversible side effects (1).

Faculty Physicians & Surgeons (FPS) of the Loma Linda University School of Medicine, the defendant in this case, had appealed the decision on the grounds that the award was excessive and violated California law, which caps non-economic damages at $250,000 in cases of medical negligence. Ultimately, a three-member appellate panel rejected these arguments, allowing the award for non-economic damages to stand as an exception to the medical malpractice damages cap (1).

According to the panel's opinion, plaintiff and respondent Keith Burchell discovered a small mass on his scrotum and sought treatment from Dr. Gary Barker in 2014. The doctor recommended the small mass be removed and tested.  Burchell consented to a “local excision of a scrotal mass”—an outpatient procedure with minimal risks (1).

However, while performing the surgery, Barker found that the mass was much larger than expected, involving both the scrotum and significant portions of the penis. Concerned that the mass was malignant and could potentially damage the urethra, he chose to remove the growth from both the scrotum and penis. Barker did this without consulting Burchell, who was under anesthesia, or his medical proxy, who was present at the hospital. Dr. Barker knew the procedure would render the patient impotent. The mass in question was later found to be benign (1).

After suffering a serious postoperative infection that required emergency treatment and grappling with disfigurement and complete loss of feeling in his penis, among other issues, Burchell and Ricks filed suit against Barker and Loma Linda University Health Care (this was later amended to Faculty Physicians & Surgeons of the Loma Linda University School of Medicine after discovering that was the true name of Barker's employer) in March 2015. The complaint was a hybrid action, asserting both medical negligence and medical battery (1).

“Because California's limitation on damages for a medical malpractice claim is so egregiously low, only $250,000, I knew it was critically important for us to show the jury and the judge, this claim went well outside of the medical negligence claim, and was in fact, a medical battery on Mr. Burchell,” said attorney David Ricks. “There are no limitations of damages on medical battery, and 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.”

Finding in favor of Burchell, the jury awarded him $4 million in past non-economic damages and $5.25 million in future non-economic damages for a total award of $9.25 million. (The parties stipulated to $22,346.11 in economic damages before trial.) (1)

After the surgery, Burchell was unable to achieve an erection, an issue which hasn't been satisfactorily resolved, despite two reconstructive surgeries, as the penile structures typically used to anchor implants were “completely obliterated” by Barker, according to the testimony of the doctor who performed the reconstructions. Burchell also struggles with “spraying of his urinary stream and difficulty voiding in the standing position,” as well as constant pain in the internal base of the penis. (1)

“Upon learning 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,” Ricks said.

FPS filed an appeal, asking for a reversal of the verdict and remand for a new trial unless Burchell agreed to accept a reduced award, arguing that the amount awarded by the jury was excessive and violated California Civil Code section 3333.2, subsection (a) of the Medical Injury Compensation Reform Act of 1975 (MICRA), which limits non-economic damages to $250,000 in medical negligence cases (1).

However, the appellate panel found that the cap doesn't apply to medical battery cases like Burchell's,  in which “a physician obtains a patient's consent to perform one type of treatment, but performs a substantially different treatment for which the plaintiff gave no consent” and did not meet the exception for a life-threatening emergency. The panel also rejected FSP's assertion that the sizable award was the result of an improper argument by Ricks (1).

“Patients can only control the consent they give to the doctors when they enter surgery,” said Ricks. “The doctors need to respect that consent and not unilaterally expose a patient to risks not agreed to in advance. I am grateful to be a part of this very important outcome and hope it will help doctors reconsider their actions outside of consent, and other injured individuals in the future.”



  1. Keith Burchell vs. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, September 10, 2020, Case Number E071145 (originally San Bernardino County Superior Court Case Number CIVDS1503214), Court of Appeal of the State of California, Fourth Appellate District, Division Two


Case Numbers:

E071145, Court of Appeal of the State of California, Fourth Appellate District, Division Two

CIVDS1503214, San Bernardino County Superior Court


About David H. Ricks & Associates:

During his more than 30 years of practice, attorney David Ricks has helped countless clients recover fair compensation for injuries and losses caused by another person or entity's negligent or intentional conduct. Ricks brings his extensive knowledge and experience to each and every case and is a tireless advocate for his clients. David H. Ricks & Associates handles a broad range of personal injury cases, including car accident, slip-and-fall, dog bite and animal attack, medical malpractice, and wrongful death claims. Learn more about the firm and its services, or schedule an appointment for a free initial consultation to discuss your case.


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