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?
Paul, if the colonoscopy prep did it’s job, you would be looking at a clean sparkling intestine (barring any pathology). Nothing revolting about it.
I agree the case has some big obstacles but the Charnoffs, who represent the plaintiff, are no fools and I suspect there is more to the file that the bare bones of the pleading. The HIPAA aspect with the negligent disclosure of medical records is an interesting cause of action.
I would offer to settle out of court. I would give her a colonoscopy and she would be on the receiving end for a change.
If the patient is suing I think HIPAA is out the window on this event.
Lrobby99 – not sure I could keep my lunch down if I gave anyone a colonoscopy 😉
You’re right Paul. The patient “owns” the protection under HIPAA.
HIPAA.
There has been huge damage done to trust and belief in the medical world thru this post – we are all reading this and totally disgusted – next time any one of the readers of this article has any surgical procedure they will remember this and have less trust and confidence in their doctors and nurses – damage is ALREADY DONE by these idiiots !!
I would like to see a report of what the people involved in this case actually DO about it – a very public apology is called for !!
Tony, In a two party state, both parties need to consent to a recording. In a one party state, only one party. In this case no party consented. And, the OR is HPPA covered w/ a heightened expectation of privacy. But, this is just my take, I am not an attorney.
Annie – it appears that the other staff were piling on, so to speak. They were complicit.
Annie, oher.
Nick, the tape is coming in even with no consent – I think. The statements were made in the presence of multiple others and, looking at the content alone, ought not have any accompanying reasonable expectation of privacy.
Prof Turley, assuming he can make out a tort here, the fact that the lawsuit “expands” what would otherwise be the audience shouldn’t be a relevant consideration. The alternative, no suit, is the greater evil.
Annie,
How did you say ho hum the other day?
*other*
Having worked in day surgery, there may be kidding around, but as Oher medical professionals here have said, discussing the patient in a negative and personal way is unusual. The nurses and staff working with this doc should’ve gotten together and gone to the Administrator to file a complaint.
I would think there is a slander suit with the mere utterance with an audience. The patient does not have to be awake to hear that.
nym, The doctor’s behavior is unacceptable and a Medical Board should deal w/ that.. That is an interesting point about the one party consent. Since NO party gave consent the tape would be inadmissible. The entire lawsuit would be about the admissibility of the tape. If the judge rules, inadmissible then the case is over. If the judge rules admissible, then almost certainly it settles. This is not a case that would be tried IMO. Great comment, keep them coming!
Molly Cooke, thank you for reminding us of the importance of respecting human dignity. The physicians’ comments in this instance were crude and unprofessional, but I’m unable to convince myself that they are actionable.
Nick,
On another board it was stated by people representing themselves as lawyers that since the patient was unconscious, he wasn’t a party to the conversation and hence the one party consent law was not applicable. IANAL, so I thought it interesting.
I don’t know if the OR Team’s discussion is actionable, IANAL, but I would hope any medical society they are part of would censure them.
As a patient I am disgusted by their talk.
They tell us that we can trust them, that they are not judgmental. In fact, the b*t*ds berate us for not trusting them, for not telling them our most intimate details, and then, not just when our backs our turned, but when we are at our most vulnerable, naked and unconscious and with guts exposed before them, they make these comments?
To h**l with those doctors.
Their behavior may be legal, but their medical board should make it clear their behavior is intolerable.
nym – this is the classic physics question, if a tree falls in a forest and there is nobody there (unconscious patient) does it make a sound? We may have a new answer. 🙂
Nick,
On another board it was stated by people representing themselves as lawyers that since the patient was unconscious, he wasn’t a party to the conversation and hence the one party consent law was not applicable. IANAL, so I thought it interesting.
I don’t know if the OR Team’s discussion is actionable, IANAL, but I would hope any medical society they are part of would censure them.
As a patient I am disgusted by their talk.
They tell us that we can trust them, that they are not judgmental. In fact, the b*****ds berate us for not trusting them, for not telling them our most intimate details, and then, not just when our backs our turned, but when we are at our most vulnerable, naked and unconscious and with guts exposed before them, they make these comments?
To hell with those doctors.
Their behavior may be legal, but their medical board should make it clear their behavior is intolerable.
Molly, Great comment. I would want you teaching my doc. I just have some serious questions about this. And, ALL professions mock clients, customers, they don’t like. You should hear attorneys talk about the clients they don’t like, particularly docs they are representing in med mal cases! We’re human and flawed.
Has anyone considered this guy was setting up these people. He was obviously an a-hole prior to surgery. He records the conversation. He’s in a one party state? Healthy skepticism is always healthy.
I agree that all professions do it. You should hear teachers talk about students in the teachers’ lounge. Still, they only do it outside the hearing of the students and often it is just black humor to get past the day or let off steam. I have never heard a teacher demean a student like this doctor did to this patient.