BIRMINGHAM, Ala. (CN) - A man who claims his penis was amputated during a routine circumcision procedure has had his lawsuit thrown out for the second time.
In July, Johnny Lee Banks, Jr. and his wife sued Alabama's Baptist Health System and others over the botched procedure, but the case was thrown out a month later after a circuit court judge concluded it did not meet requirements under the Alabama Medical Liability Act.
Under the Act, said Jefferson County Circuit Judge Jim Hughey "The plaintiff shall include in the complaint ... a detailed specification and factual description of each act."
The judge, however, gave plaintiff time to replead his case.
In September, the Banks' attorney, John Graves, filed an amended complaint, which Judge Hughey tossed out for a second time this week.
Hughey's action came after several defendants in the case, including Urology Centers of Alabama, the Simon-Williamson Clinic and three doctors filed motions to dismiss and also requested sanctions against Graves, who had admitted he did not review "a single medical record" prior to filing the lawsuit.
The defendants called the complaint, "fake, scandalous and calculated to intentionally and publicly harm the reputations of distinguished physicians."
In an affidavit filed with the court, Dr. Vincent Bivins denied performing a circumcision on Mr. Banks, who he claimed has numerous medical conditions, including chronic kidney disease, diabetes, congestive heart failure and a history of bilateral lower extremity amputations.
Dr. Bivins also said Banks has a history of "diabetic wet gangrene of his lower extremities" and hat he saw the patient because of "gross swelling" in the penis and scrotum.
Dr. Bivins said he performed a "medically necessary small dorsal slit and meatotomy, which is a small opening to permit the necessary insertion of a Foley catheter so that Mr. Banks could pass urine."
Although Dr. Bivins did note the patient would need a circumcision at some point, he did not perform one at that time.
In his order, Hughey said the only "primary substantive change" in the amended complaint is that the plaintiffs now claim the procedure took place four months earlier. He said, "Plaintiffs do not identify any particular standard of care allegedly breached during or before the procedure. Rather, plaintiffs rely on the conclusion that if the result of the procedure was an amputation, there must have been a breach of one or more standards of care."
Although Hughey admitted plaintiff's injury is "extreme," he continued, "the extreme nature of the alleged harm is a significant part what makes plaintiffs' uncertainty regarding the time, place, mode and method the harm was incurred so problematic." Hughey said in medical malpractice claims filed in Alabama, the burden of proof lies with the plaintiff and the amended complaint also fails to meet the "heightened pleading standard" under the Alabama Medical Liability Act.
Hughey left the door open for plaintiffs to file yet another complaint, but he added the statute of limitations in Alabama is generally within two years of the act. He refused to rule on defendants' motion for sanctions against Graves under The Alabama Litigation Accountability Act until a final judgment has been issued on the case.
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