Medical Malpractice Insights: Missed testicular torsion – Is it “gross negligence”?

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is to improve patient safety, educate physicians and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here. Stories of med mal lawsuits can save lives. If you have a story to share click here.

Chuck Pilcher, MD, FACEP

Editor, Medical Malpractice Insights

Missed testicular torsion: Is it “gross negligence”?

Be nice, or risk being called “willfully and wantonly negligent”


[Note from Dr. Pilcher: Most med mal cases are evaluated on the basis of ordinary negligence, i.e., a mental error or wrong procedure/treatment that a reasonable practitioner under similar circumstances would have avoided. Some states allow (or even require) a higher bar called “gross negligence.” This is defined as “aggravated negligence that amounts to an indifference to one’s legal obligations with respect to the rights of others.” “Gross negligence” is a subjective finding that requires an assessment of the “state of mind” of the defendant physician. The following is an example of a case claiming gross negligence.]

Facts: An adult male patient presents to a free-standing ED with RLQ abdominal and flank pain (He claims that he told the triage nurse that he also had inner thigh and groin pain, but there is no record of that). The ED physician evaluates him using an “Abdominal Pain” template that includes testicular torsion as a potential cause. He does not check the box labeled “Male Genital Exam,” and torsion appears not to have been considered. The patient is discharged with a non-specific diagnosis but returns the next day unimproved. He asks to see the same physician from the day before, who meets him in the waiting room before he can check in. The doctor allegedly “rushes him out,” telling him to go to [a nearby teaching] Hospital because “there is nothing more to do.” There his torsed testicle is removed. The patient files a lawsuit against the ED physician claiming he was treated with “willful and wanton negligence.” A lower court dismisses that claim based on insufficient evidence. That ruling is appealed.

Plaintiff: I had classic signs and symptoms of testicular torsion and have an expert witness physician who agrees with me. Your own forms instruct you to evaluate me for torsion before discharging me. If you had, you would have gotten an ultrasound exam and made the diagnosis. When I returned the next day, you brushed me off completely as only wanting pain meds and told me to go to [the teaching] hospital. I did not refuse to check in. When I called you after my testicle was removed, you told me it was “no big deal” because I would “not be having any more children because of my age.” You not only misdiagnosed me, but did so with willful disregard of the risk that your behavior posed for my health.

Defense: I considered torsion but didn’t document it. You didn’t need an ultrasound of your testicles. When I saw you the second day, you refused to check in. I told you to go to the other hospital and they fixed you.

Result: The trial court dismissed the claim of “willful and wanton negligence” against the ED physician. The plaintiff appealed and the appellate court over-ruled the lower court, leaving it up to a “fair-minded jury” to determine the “subjective state of mind” of the physician. Prior to trial a settlement was reached for an undisclosed amount.



  • * Be diligent about completing EHR “click-tation” templates as designed.  * Document what you do, including pertinent negatives. Don’t document things you don’t do. [Editor’s note: A 14-point ROS and complete PE is rarely justified for a simple ankle sprain. Documenting these raises a question of one’s honesty and/or billing ethics.]
  • Revised CPT coding guidelines for 2023 replace “box-checking” with evidence of the complexity of “Medical Decision Making,” a long overdue decision.
  • Be nice to all patients, even those you may dislike.
  • “Willful and wanton negligence,” aka “gross negligence” is determined subjectively by a jury through an assessment of the defendant’s state of mind at the time of the alleged incident(s). Exposing yourself to a jury to decide if you are a “nice doctor” is rarely a good idea.
  • It’s one thing to make a diagnostic error, but should a jury find one guilty of doing so with “willful and wanton negligence,” one’s career could be over – which likely explains the pre-trial settlement on the charge of “gross negligence.”


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