Clearly, when Otto von Bismarck said “Laws are like sausages, it is better not to see them being made” he apparently not never watched a surgery in progress. There is a fascinating case out of Virginia where a colonoscopy patient is suing over allegedly abusive comments made about him by his doctors . . . while he was under anesthesia. While this may sound like a torts version of the tree falling in a forest question, there was someone to hear these comments beyond the medical staff: “DB” had failed to turn off his cellphone which continued to record comments of the doctors ridiculing him, his body, and his character. [UPDATE: A Virginia jury awarded the patient $500,000]
DB says that he taped the instructions given to him by his doctors before the surgery but forgot to turn it off. When he played it back after the surgery, he was shocked by what he heard. His lawsuit says that Dr. Tiffany Ingham is recorded addressing his unconscious body: “And really, after five minutes of talking to you in pre-op I wanted to punch you in the face and man you up a little bit.” She also reportedly called him a “big wimp” and a “retard.” In addition about ridiculing his alma mater of Mary Washington College, she is quoted as saying more menacing things about firing a gun up his rectum and suggesting that they falsely note on his chart that he had hemorrhoids.
The staff is portrayed as exhibiting all of the decorum and professionalism of an Animal House fraternity with Ingham as the resident Bluto. Some members reportedly jokes about a rash on DB’s penis and how he looks like he has syphilis. Ingham, who comes off particularly badly, is quoted as saying “It’s probably tuberculosis in the penis, so you’ll be all right.”
DB says that the doctors then discussed how they would avoid him after the surgery.
He is suing for $1.35 million in damages for defamation, infliction of emotional distress and illegally disclosing his health records.
The defamation is particularly interesting. While an unconscious patient would have a challenge in making claims like assault, defamation does not require contemporary knowledge and indeed it is often discovered later by the victim. The real challenge is likely to be the defense of humor or opinion. Clearly they are expressing their opinion as to his being a “wimp” or “retard.” Even the statements about avoidance can be dismissed as opinion. No one would argue that the suggestion of firing a gun up his rectum or falsifying his chart were serious. That leads to a serious question of whether there is an actionable statement among these clearly unprofessional and unkind comments.
The infliction of emotional distress and disclosure of health records present a different legal profile. I can understand why a patient would find this recording highly embarrassing and distressful. It was intended to be stated among the medical team, of course, and the lawsuit now guaranteed a wider audience. Likewise, disclosure of facts to the medical team from his record could be viewed as protected. (However, those disclosures were not made for any apparent bona fide medical purpose).
In Virginia, the elements for an intentional infliction case include that “the wrongdoer’s conduct is intentional or reckless; the conduct is outrageous and intolerable; the alleged wrongful conduct and emotional distress are causally connected; and, the distress is severe.” Russo v. White, 241 Va. 23, 400 S.E.2d 160, 162, 7 Va. Law Rep. 1253 (Va. 1991). The conduct is clearly reckless in this case. In addition, there is the option to proceed under a negligent infliction theory. In Beach v. McKenney, 82 Va. Cir. 436, 2011 Va. Cir. LEXIS 156, the court stated:
In Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214 (1973), the Supreme Court held for the first time that mental anguish not caused by a direct physical injury will be recognized as a separate action, assuming that the plaintiff can establish certain elements: the defendant was negligent; such negligence was the direct and proximate cause of emotional distress; and the emotional distress naturally resulted in a physical injury; that is, a claim for negligent infliction of emotional distress is one where a plaintiff was not physically injured but experienced such emotional fright or shock that the emotional disturbance manifested itself in the form of physical injury. There are certain limited exceptions to the rule requiring a physical injury resulting from the emotional disturbance, which are narrowly applied. See Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982) (allowing a claim for mental distress without physical manifestations in a wrongful birth suit); but see Myseros v. Sissler, 239 Va. 8, 9, n. 2, 387 S.E.2d 463, 464, n. 2, 6 Va. Law Rep. 935 (1990) (limiting Naccash to its facts).
Doctors may raise objections that liability could chill or curtail frank discussions among doctors and medical teams. This would be a bad case making bad law until these circumstances. One question is whether the hospital and state medical board will take actions against the doctors for this type of trash talking and unprofessional conduct.
What is particularly chilling is that this is an almost unique circumstance where a cellphone was brought into the surgery and left on. I expect that there is a great deal of gallows humor and juvenile remarks in surgeries. However, since no one hears the comments beyond the team, no one is in a position to sue. The question is whether there is sufficient “publication” on the medical team to cause harm. The emotional distress claim is best suited on that one element since it is the impact of the comments on the patient that is the relevant measure.
What do you think?
I am a physician – this trail was forwarded to me by a patient who is an attorney. Although it is off the theme of the conversation, I would comment that in addition to being unkind and disrespectful to the patient and consequently destructive to the relationship between the patient and the physician (even if the patient is unaware) this kind of mockery and is harmful to the physician who was the ringleader and the others around her. I worked for 12 years in an inner city, public teaching hospital. Many of our patients were not the easiest or most attractive people in the world but running them down, even in the most private of settings, demeans our own work and breeds cynicism and contempt. I would not let my students and residents do it – even in the spirit of “harmless blowing-off steam” and when I encountered colleagues doing it I would comment that I found it unhelpful. Everyone was someone’s beautiful baby, adored lover, admired big brother or something wonderful once. When we can’t see it in front of us, it is our job to imagine it and to care for them from that place of imagination. Some people may have found this irritatingly preachy, but most people appreciated the reminder.
That hospital seems to be a meat factory.
How do you know he’s winning in the court of public opinion? Is this the thread the dispositive “court” of which you speak?
While the patient may not win a lawsuit, he is already winning in the Court of Public Opinion. Furthermore, how will the doctor and OR staff fare in hearings before the State Medical Board? Not so well, methinks.
Publication shouldn’t be an issue unless all people present are somehow considered to be a single entity (i.e. “the medical team”). Each comment by one person was published to the others present. This may be complicated by his attorneys suing the medical personnel’s employers without suing the personnel individually.
Opinions are, of course, not actionable, but the comments regarding syphilis and “tuberculosis of the penis” could be determined to be false statements that he had a loathsome disease which is defamatory per se.
Lol! Maybe he had a real big hole. What is surprising to me is for most colonoscopies they just give you that twilight anesthesia. The nasty banter I am talking about occurs during general. I have a vague recollection of conversations w/ the doc and RN during my scope. Although, I think you can request a general.
ID, Maybe this a-hole had the phone up his, like an inmate.
Nick – they were doing a colonoscopy, you would have thought they would have found a phone. 😉
I’d like to know what went on during the pre-op interview that would prompt Dr. Ingham to begin punching DB in the face. But the thing that most concerns me is that DB had his cell phone with him in the OR. How does that happen? Last time I went in for surgery I wore underwear and a hospital gown. They even made me take off my wedding ring.
Sadly, this is an all too common occurrence that most patients are blissfully ignorant of. If audio and video recordings were allowed in the surgical theater, there would be a huge backlash of patients like this suing. I make a point of discussing ahead of surgery with the doctor my request that they hold a space of healing for me while I am under anesthesia…..meaning through their words and actions they express their intent that I heal quickly and easily. I hope…maybe naively…that just by having this conversation the healthcare team realizes that I believe words and thoughts have great power and hope they use that power to my benefit. I do this because I had an issue where under hypnosis I recalled derogatory and disparaging comments that were made by the OR staff while I was under anesthesia. Although I can never truly know if that in fact happened, it did make me aware of the possibility and cause me to take steps to address the issue.
I’m certain the unsterilized phone presented a health hazard, and it’s ringing or beeping could have been a safety hazard, causing the surgeon to flinch. Many surgeons play music, that might have been their savior if played loudly. I know one who plays heavy metal loudly.
Virginia is a one party consent state vis a vis recording phone conversations. If memory serves from the Linda Tripp/Monica saga, Maryland is a 2 party consent state. DB is fortunate his surgery was in Virginia or he might be in a trick bag.
I think DB is probably an a-hole.
I would agree that publication might be an issue because these actions may not have been published without the filing of the lawsuit. Also, is there any law against bringing recording devices into a surgical room without permission? Very disturbing and unprofessional conduct, to say the least.
rafflaw – I think that some facilities record all their surgeries for their own protection. Once they do that I would think they would give up any privacy rights from the patient. In this case, supposedly, the patient forgot the phone was still on so there is no intent, it is accidental that he “overheard the insults” of the staff. I would argue that publication begins with the recording.
Having worked in a cath lab setting where patients are often sedated for procedures there is a certain amount of joking but making personal comments about a patient was always off limits – you never said anything the patient would not like to hear, especially juvenile comments about their body.
The doctor and medical team deserve punishment for their inappropriate words and actions. Being the head of the medical team the physician deserves more severe actions as she is supposed to set an example for the rest of the team. From the sound of it any member of the team would have been within their rights to initiate a harassment complaint for inappropriate behavior.
Having worked on cases defending surgeons on med mal, and interviewing many RN’s, it get’s REALLY rough in the OR, this is fairly tame compared to some of the tales I’ve heard.
There was a case at the Mayo Clinic here where a surgical resident took a picture of a man’s penis because it had an interesting tattoo (the guy owned several adult shops). The resident lost his job.
Dr. Ingram got one star out of a possible five in Healthgrades (three ratings).
I suspect that she will pay a price for her sense of humor (even under Obamacare, patients still have some choices).
Lol, what says the Attorney from Virginia?
There are studies showing that when patients are under, the doctors should only say positive things about them. The doctors in this case would have a hard time getting past those. Trash talking the patient is a surgical no-no, while the patient is under. Even though you are technically unconscious, your brain is picking up what the staff is saying. It affects the healing process.
I am not sure where the claim is here, but I will say that the staff is unprofessional.
Studies have shown that what the doctors and nurses say while the patient is anesthetized influences patient outcome. Your unconscious is still listening.