From Trial Guides:
Dec 09, 2024
Congratulations to Trial Guides authors Nicholas Rowley and Theresa Bowen Hatch, along with Keith Bruno and the Trial Lawyers for Justice team, for securing a $412 million medical malpractice verdict in a lawsuit against a men’s health clinic.
In Sanchez v NuMale a jury returned a record $412 million verdict, including $375 million in punitive damages against the Las Vegas-based defendant, who was found 100 percent at fault in a botched penile injection procedure. Rowley called the defendant’s actions a "fraudulent scheme to make millions off of conning old men."
The case was brought by Bencoe & LaCour Law, PC, a New Mexico partner firm of Trial Lawyers for Justice, a national trial law firm founded by Trial Guides authors Nick and Courtney Rowley. According to Newsweek and other sources, this is the largest recorded medical malpractice payout for a single plaintiff.
Case: Sanchez v NuMale
Country: Bernalillo County, Albuquerque NM
Total Verdict: $412,005,149
The Case
The Defendant
NuMale is a multi-state men's health center, founded in 2013 and based in Las Vegas, Nevada, with a clinic in New Mexico. The company reportedly offers treatments for erectile dysfunction, hair loss, premature ejaculation, testosterone replacement therapy, and weight loss.
Among their listed treatments for erectile dysfunction is Trimix injections: “a precise combination of three powerful vasodilators—papaverine, phentolamine, and prostaglandin E1—each targeting different aspects of the physiological process that leads to an erection.” The defendant claims that this treatment “not only increases blood flow but also enhances the duration and quality of an erection, making it suitable for sexual intercourse.”
The Plaintiff
The plaintiff, then a 66-year-old widower, first visited NuMale Medical Center in 2017 for fatigue and weight management. The clinic misdiagnosed him and instead treated him for erectile dysfunction (ED) in order to sell him invasive penile injections for “rehabilitation." The plaintiff had stated he only wanted testosterone for fatigue and weight loss. Evidence showed that he had left his entire sexual health history blank on his intake form.
Though the plaintiff disclosed multiple medical conditions and repeatedly told them he was widowed and not sexually active, the NuMale staff did not adjust their treatment to meet his lifestyle or goals. Instead, the physician's assistant (PA) injected him with the chemical, diagnosed him with ED, and told him that doing nothing would cause irreversible harm only their medicine could cure.
The plaintiff momentarily felt hope that he may have a love life again after losing his wife five years earlier. Instead, after an emergency surgery following a painful, 60-hour erection (priapism) just a few weeks later, the plaintiff was left with a completely scarred and nonfunctional penis. According to plaintiff attorney Lori Bencoe, these treatments left the plaintiff “permanently damaged, robbing him of the ability to share intimacy or even urinate normally for the rest of his life."
Trial By Woman by Courtney Rowley and Theresa Bowen Hatch is available in paperback and ebook.
A Treatment Gone Wrong
After NuMale’s PA administered the unnecessary test, diagnosed him with ED, and prescribed a package of injections and testosterone, their nonmedical salesperson followed a marketing sales script written by the nonmedical owners. (At trial, the salesperson testified that NuMale was “just another sales job.” Before working for NuMale, he sold insurance, and he now sells HVAC systems.)
The plaintiff picked up his injection medicine about a week after his initial consult, and was “trained” in its use by a member of NuMale’s staff. On the same day, he also had testosterone pellets inserted and underwent a medically untested platelet-rich plasma procedure that the defendant claimed would heal damaged vessels in his penis (and increase size). At trial, the plaintiff’s expert called this false and stated that PRP was experimental at best.
The total cost of the procedure was $5,000, plus a $149 consultation fee. The defendant did not offer a single written discharge instruction to follow in case of emergency.
Just weeks later, on a Friday afternoon, the plaintiff returned to the clinic after having trouble with the injections he was instructed to self-administer twice weekly at home for therapy. Without assessing if he was doing them properly, the PA injected him with a 75% stronger dose of medication to induce another erection.
Then, contradicting NuMale’s own policy, the PA gave no antidote, but just instructed the plaintiff to “go home and show your friends.” The plaintiff signed no consent form and was offered no additional training for using the home antidote, which the plaintiff was unable to inject.
The plaintiff went home and attempted to inject the antidote multiple times without success. He spent a weekend in pain, not knowing what to do. Nobody told him that after six hours, irreversible tissue damage could occur inside his penis.
When he returned to NuMale on Monday morning, 60 hours into a sustained erection (priapism), the PA had to call his supervising doctor, who was running another clinic in Beverly Hills, to ask what to do. Procedures to reverse the priapism failed, and the NuMale staff told the plaintiff to drive himself to the ER, where the urologist performed an emergency surgery.
Instead of taking responsibility for medical fraud and unconscionable business practices, however, NuMale blamed the plaintiff for not going to the ER sooner. They also attempted to blame him for not calling the hotline number on the medical disclosure form, which he had not received, during the initial office visit more than three weeks prior. The jury heard testimony that Numale called the injury “self-inflicted.”
“A Recklessly Negligent Twist”
In what plaintiff attorney Lori Bencoe called “a recklessly negligent twist,” the non-medical salesperson also had the job of training men how to self-inject the medicine, and administer the antidote in case of an emergency, on a dummy penis. He also admitted, under oath, that the 37 pages of consent and information forms NuMale had the plaintiff initial and sign usually just went into the file, and they only gave them a copy to their client when specifically requested.
The plaintiff was not proffered emergency care instructions or a hotline number. Moreover, a local urologist testified that another patient had called NuMale’s hotline number and got no response.
Evidence showed that NuMale’s job description for the PA promised “no call, no after hours and no emergencies”—while offering bonuses based on sales and number of procedures.
The Mechanics of Medical Fraud
According to trial counsel Keith Bruno, NuMale falsely marketed itself and engaged in duplicitous business practices. For example, NuMale claimed that its injections would cure latent tissue disease in the penis, make the penis bigger, and if injected twice a week for a year, would cure ED in most men, allowing them to get off drugs altogether. None of these claims are medically true. But in order to convince the patient that there was a problem and NuMale offered the cure, NuMale staff would induce an erection by injecting a medicine into the penis, as a proof of concept and efficacy, and then “diagnose” ED to sell their treatment packages. Their marketing materials falsely informed patients that ED left untreated would cause irreversible damage, atrophy, and fibrosis to the penile tissue if they did not take two to three penile injections per week as rehabilitative therapy, regardless of sexual activity. (This is false.)
According to Bruno, while their ads never mention injections, the company’s principal owner has called testosterone the “gateway” to get men into their clinics. Once there, most patients end up on the “FDA-approved, 98% effective ED treatments” that the company claimed could cure ED after six to twelve months of regular use. (This is also false.)
Once in the clinic, men who asked for testosterone would be given a “test” that the defendant would say was “medically necessary to evaluate erectile function;” internal training materials called this injection test “mandatory.” This test promptly caused a chemical erection, which would encourage men to buy the product.
The Trial
Lori Bencoe, an attorney for the plaintiff, describes the experience of taking this case to trial with the team: “Our firm has been working with Nick Rowley, Theresa Hatch, and Trial Lawyers for Justice since 2019,” she says, “but this was our first opportunity to try a case with them. Theresa made tactical evidence decisions and took some great discovery depositions for use at trial. Keith [Bruno] and Nick are a lot of energy in a courtroom and total class acts. Nick’s jury selection was masterful—it was his 181st—and [the judge] permitted over a day to assure that we got a good fair and unbiased jury.”
Voir Dire and Opening Statement by Nick Rowley, Courtney Rowley, and Wendy Saxon is available in paperback and ebook.
In the years of discovery and pretrial motions, the defense failed to respond to nine motions to compel. This resulted in the plaintiff team gaining access to all of internal training, marketing, sales, and hiring documents under a pretrial order. Shortly before trial, the plaintiff team successfully challenged the confidential status of those exhibits, which enabled them to prosecute NuMale from a perspective of transparency about its business practices.
New Information about the Treating Physician Assistant
At trial, it was revealed that the treating PA was hired in spite of a worrisome work history. He had lost a job for taking drugs off a cart in the OR, for example, and he was a disaster witness for the defense. Nick Rowley held him to his prior testimony, even as the PA kept changing it. He admitted to telling the plaintiff to “go home and show your friends.”
At trial, the PA admitted that all the forms NuMale had new patients sign were put in their file after initial consultation, and no later consents were given. He testified that when he was at NuMale, they had “lots” of priapisms but he could usually take care of them in the office.
The PA also admitted to falsifying the plaintiff’s records after learning about the Board Complaint lodged against him; he added untrue things about the plaintiff that would help him, such as a lie that he had tried Viagra in the past without success.
After an official Board Complaint, the PA entered into an Agreed Order and is no longer practicing.
Pursuing Damages against the Parent Company
NuMale Albuquerque was run and managed by two subsidiary companies of NuMale Corporation, based out of Las Vegas Nevada. The plaintiff team presented evidence showing that NuMale Corp was responsible for all ads, staffing, and management decisions for all twelve clinics, and the parent and subsidiary companies were all owned and operated by the same four individual codefendants.
Finding that Numale Corporation fully dominated its subsidiaries for an improper purpose, the trial judge acting in equity granted the plaintiff’s motion to pierce the corporate veil and hold the parent company responsible for all the conduct of its subsidiary companies in New Mexico. The jury’s verdict also found that the parent, its two subsidiaries, and all four of its principal owners-officers were civil co-conspirators.
Proving Inappropriate Medical Treatment
At trial, the plaintiff team explained that penile injections carry inherent risks; in accordance with medical guidelines, they require dose titration, patient training by a trained urologist, and ongoing monitoring for dangerous side effects. The FDA specifies that the use of psychotherapy and pills should be explored before this medical procedure, and even then, this procedure is only appropriate for patients who wish to be sexually active.
The plaintiff did not come to the clinic seeking treatment for ED, and had no partner. That did not dissuade NuMale from hawking and administering a product that was wholly inappropriate for their client.
Internal training documents even mocked men who sought therapy for treatment for erectile dysfunction. In one shocking slide, the company even said that if psychotherapy works to treat his ED, “then the guy may be [a pussy].” When presented at trial, the jury was unimpressed with this crass machismo.
The Verdict
After three and a half hours of deliberation, the jury returned a unanimous verdict for the plaintiff. The jury found that NuMale engaged in fraud, negligence, and unconscionable UPA violations, awarding $375 million in punitive damages in addition to $37,005,149 in compensation for the plaintiff’s irreparable injuries. According to the foreperson, the jury hoped the compensatory verdict would care for the plaintiff’s lifetime medical needs, and also wanted him to get back every penny he paid NuMale: $5,149.
At over $412 million in total damages, this is the largest medical malpractice verdict in the U.S. to date.
Compensatory Damages: $37,005,149
Punitive Damages: $375,000,000
Total Verdict: $412,005,149
Keith Bruno hopes the verdict “sends a powerful message that medical providers cannot prioritize profits over patients' well-being without being held accountable."
Damages Evolving by David Ball, Artemis Malekpour, Courtney Rowley and Nicholas Rowle is available in paperpack, ebook and audiobook.
