Lawsuit against doctor spurred by humiliating outcome of procedure
A man’s lawsuit against a Beverly Hills surgeon for a penis enlargement gone bad has raised questions about the procedure, which has grown increasingly popular behind heavy marketing.
The case, however, was dismissed last month by a Santa Monica judge because an expert witness apparently took off on a trip, leaving his lawyer to explain it away.
Los Angeles Superior Court Judge Lorna Parnell on Jan. 21 dismissed the suit against Dr. James Elist, brought by former patient Milan Martinic. She ruled that expert witness Dr. Jack McAninch’s trip didn’t leave the defense enough time to question him before the trial. McAninch is the chief of urology at San Francisco General Hospital.
Martinic paid $7,000 to Dr. Elist for the enlargement procedure and another $10,000 was charged to him for a circumcision by a local hospital after Dr. Elist performed the surgery. Martinic is in the Internet marketing and gaming profession.
Martinic, who has had a host of other reconstructive surgeries in the past, had read Elist’s advertisement in a local publication while he was traveling in California that promised enhanced sexual performance would come with a larger size.
But the October 2000 procedure, which involved removing skin and fat from his buttocks and grafting it onto the side of his penis, left him disfigured and in severe pain, he said. Martinic claims he was never told that the fat from his buttocks could migrate and form hard lumps at the base of his penis, thus leaving him unable to urinate. Martinic said his penis swelled up, resulting in scarring, disfigurement, loss of sensation and impaired function.
The surgery, which lasted three hours and is medically referred to as “phalloplasty,” is a type of lengthening procedure involving “surgical severance of the suspensatory ligament which would otherwise attach the penile shaft to the pubic symphysis.” The enlargement involved surgical placement of “fat harvested from the gluteal fold and surgically placed along the sides of the penile shaft.”
340,“It doesn’t really lengthen it, it makes it hang longer. So visually, it’s different,” said Martinic’s attorney, Steven Fabbro of San Francisco. “It hangs differently between your legs.”
Lawyer Staci Meinzer, representing Dr. Elist, argued that Martinic knew the risks included scarring, infection, bleeding, loss of sensation, skin discoloration and disformity.
“Our defense was our client did everything he was supposed to do,” said Jeff Moffatt, a shareholder in Bonnie, Bridges, Mueller, O’Keefe and Nichols, the Los Angeles-based law firm retained by Dr. Elist.
“It’s not an experimental procedure and I don’t think any doctor guarantees any results from a surgery,” Moffatt added. “Any time you have surgery things are going to happen. What we maintain is the outcome of the surgery is in accord with the standards of care.”
Consent forms usually say that the risks have been discussed between the doctor and patient. This case was no exception, Moffatt said.
However, Martinic maintains he never gave full, informed consent and wouldn’t have had the procedure if he was fully aware of the possible outcome and risks.
“They always hide behind the consent forms, but they don’t say what the risks really are,” Fabbro said. “It’s not up to the patient to ask questions and know what the risks are. It’s not the patient’s duty, it’s the surgeon’s.”
Martinic is no stranger to reconstructive surgery. He has undergone liposculpture of his face, neck, jowls and chin at Coronado Skin Medical Center in Coronado. In 1999, Martinic had a chin liposuction.
“Dr. Elist didn’t adhere to a standard of care,” Fabbro said. “If a procedure is not proven to be safe and efficacious, then it should not be performed and this is not proven safe or efficacious. There is no published report that proves it’s safe and efficacious.”
Fabbro, who has handled dozens of similar malpractice cases, said doctors capitalize on fragile individuals by advertising that their dreams can come true with larger penises and that “bigger is better.”
3F1,“These doctors run ads in Hustler, Penthouse and they are all purveyors to the sexual inadequacies of men,” he said. “They prey on men’s insecurities.”
The case fizzled for now when Fabbro had to ask for a postponement because Martinic had to travel to Bolivia, and because Dr. McAninch had planned a trip to India and wasn’t available to be “deposed” — pre-trial preparatory questioning — by attorney Meinzer.
Judge Parnell wouldn’t postpone the trial because Fabbro failed to advise her that the expert witness, who is key in establishing his client’s case, wouldn’t be available, although Fabbro had said on Jan. 7 that he was ready to go to trial.
“I conclude that you didn’t check availability of your expert,” Parnell said to Fabbro, according to transcripts in court documents.
McAninch, who would be paid $500 an hour, was to testify on a doctor’s duty to establish a standard of care for patients.
Fabbro said he plans to appeal the judge’s ruling.
Originally published in the Santa Monica Daily Press print edition on February 6, 2003. Read the original PDF.