Society, Torts

Virginia Doctors Sued After Patient’s Cellphone Records Them Mocking His Unconscious Body

220px-Thomas_Eakins,_The_Agnew_Clinic_1889Clearly, 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?

240 thoughts on “Virginia Doctors Sued After Patient’s Cellphone Records Them Mocking His Unconscious Body”

  1. So even with the BEST healthcare/health TECHNOLOGY in the entire effing world, no exaggeration, and despite paying these health care staff/goofball clown doctors a pretty penny, we hear cases like this. This doesn’t bode well. Even a fairly elite personality like Joan Rivers couldnt survive our health care system . Her doctor was taking a selfie while Rivers was going into cardiac or respiratory arrest!

    It’s time for doctors/surgeons etc to cut the crap, turn off the loud metal music (i heard doctors playing loud metal music while giving people colonoscopies at an endoscopy center. I drove my friend to get one over this past summer and I drove her home.).

    With all the distractions of jokes, pranks played on unconscious patients and loud music, getting a cancer caught early or detecting other illnesses might be difficult. I always tell my children, no rap/rock music while studying..it is distracting

    So this is the state of health care in this country.

    Does anyone know of the status of this
    Case??

  3. Many think this is a rare and isolated incident, it’s not. This kind of behavior
    occurs every day in every hospital.

  4. Wow. Just wow. How can that tawana sparks still be practicing medicine? What if she were a male sexually. abusing female (or for that matter, other males or children) anesthesized patients? The Legal System allows her to get away with her sexual shenanigans.

    Why isn’t her name on a sex
    Predator/offenders list and publicized? People actually go to her?!?! Patients/consumers need to beware.

  6. Schulte, I tried to post additional links but they were eaten. The anesthetist turned the doctor in, but then was fired and blackballed for whistleblowing. Search on the doctor’s name and you will find 6 or 7 links with more details. Keep in mind, this is the same hospital that was performing forced colonoscopy exams on innocent drivers pulled over by law enforcement, then had the gall to bill the victims.

  10. Steve, she is one hell of a sexual predator. Worse, they gave her a free pass.

    Doctor accused of inappropriate exam behavior to return to practice, with conditions
    By Christine Steele Sun-News Bureau Chief
    POSTED:   11/29/2009 01:00:00 AM MST
    http://www.scsun-news.com/ci_13887704

    1. samantha – how did they catch her? This has evidently been going on for some time.

  11. There are a lot of nasty comments made by physicians and nurses toward their unconscious patients. Check out what a Dr twana sparks did to all of
    her patients at a hospital in new Mexico and did it for years.

  12. If some zit faced kid in middle school made a joke about
    firing a gun up someone else’s backside (like that tiffany ingham person), I guarantee the kiddo making the threat will be reported to the local Police and their house will be searched, the kid & the parents would be questioned. Even if someone in an office made a joke about firing a gun at someone, most people would take it very seriously and report it.
    Don’t even think about joking like that to a TSA officer! But MDs get a free pass, I guess.

  13. Electronically eavesdropping on the medical staff was the only crime committed. Had the staff spoken their comments to him directly, the patients only damages would be hurt feelings and his only recourse to take his business elsewhere. By suing, he published the statements, caused damage to the medical staff by exposing their private conversation to public scrutiny, and defamed himself. I am no lawyer, but I think the medical staff should sue the patient for damages.

  14. Spillnelli…two party phone recording has to to do with when you are recording a phone conversation…not an open air recording with a cellphone somewhat like a reporter may do when interviewing for a story. The law is plain and simple and you would be able to perhaps understand the law if you were not So keen on passing judgement and name calling people things like you have multiple times in your comments…the word a hole ,I see you enjoy using that alot…Do you have some kind of perverted butt fetish? Or are you a twelve year old? Or maybe you just act like a twelve yr old? I doubt you are an adult or a lawyer. But I do find you to be incomprehensibly immature and if you did some how snake thru the boards to become a lawyer you should most likely be barred from practicing law for the mere fact that you are not very intelligent to say the least. 🙂

  16. Pingback: Uh Oh… | Don't Curse the Nurse!

  17. tiffany ingham sounds like a school yard bully too.
    We don’t know if she threatened any staff who
    Would try to report her

    As a “professional”, she needs to blow off steam elsewhere- not in the presence of a sedated patient. That is, if she is about to go crazy from whatever. Or she can just crawl back to whatever septic tank she came from.

    Something tells me this isn’t the first time she made threats to kill or harm a patient. Lots of times many people without a history of mental illness have made threats and actually followed through. The police need to be alerted.

    Hope this case won’t discourage people from getting the dreaded colonoscopies. As it is , people try to postpone miserable procedures like these.

  18. When a high school student threatens to shoot someone at school, whether it is a joke, or serious, or if the potential
    shooter is flipping out, whatever, the POLICE are usually notified and will investigate if the threat is real, etc
    This has happened a couple of times recently.

    This tiffany ingham needs to be evaluated for threatening to shoot a gun up some poor soul’s bum hole.

    We are not sure about her mental
    state – she can pose a real threat to the public, or whoever is under sedation.

    Also, some blame goes to the gastroenterologist – he encourges her (& probably wants to get in her pants)
    We don’t know how many cancerous polyps he missed if he is too busy flirting with the blondie anesthesiologist (that would be ingham) and making jokes about a sedated patient

    tiffany ingham is also distracting the staff and gastro – that could lead to errors-might not best for the safety of the patient.

  19. Freedom of speech. Who cares what physicians say in the OR as long as they do the right thing. The patient didn’t suffer and adverse complications.
    Plus, who “accidentally” leave their iPhone on record?

    1. Sofia – I am exactly the kind of person who would accidentally leave my cell phone recording. I am not that tech savvy and have left apps running that ate the battery before. Given a stress inducing situation like this guy was in, I might accidentally think I shut it off and did not.
      There are studies that show that patients actually remember subconsciously what is said during the operation and the more positive the surgical team the more positive the outcome.

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