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?
It is very hard for me to believe doctors with this attitude toward a patient are going to do the best job, Sloppy medical care is the # 3 cause of death, so this is no joke.
It seems very similar to cops who have a contemptuous attitude toward the public and the abuses that result from that. Clearly this is not something that is an inevitable result of a difficult job, it is an ugly culture that sometimes develops in the absence of empathy and self-discipline.
In addition, since the doctor concealed her contemptuous attitude toward the patient in his presence she was not giving him the choice to choose a good doctor for his treatment. Concealing contempt for the well being of your patient doesn’t seem much different from making fraudulent claims about your skills/education.
I don’t know how the tort case will fare but I certainly see a solid complaint with the state department of health.
As others have suggested, these comments somewhat diiminish the patient’s situation and a history of doing so makes one wonder how ardently the health care professional is going to endeavor to protecte the patient’s welfare.
From a different perspective as far as the tort is concerned, if the medical personnel who were recorded during the procedure had instead talked professionally, and without the insult would the plaintiff have a case at all? The staff certainly was not aware the conversation was being recorded so how would even negligence be present?
Annie
I dunno, I think my pun was clever and it wasn’t at the expense of some poor unconscious patient in a compromising position.
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Yep.
Nyck & Bunyon PC have the same sense of humor that these herr doktur types JT speaks of have.
(one of them from the land of “us” said the patient must have been an a**hole for those dokturs to have said what they said).
When N & B PC tell a joke they are like all “bend over, I feel a funny coming on …” (gastro enter olog ists)
olog is a fancy doctored up word meaning “patient”
enter is what their god, back-door man, does
gastro is an Italian word for bathroom
ists is the gay word for the T-party
With a wide enough distribution of the contents of the law suit, the doctor is going to be able to spend a lot of time catch up on her reading. Patients are going to flee. Maybe she and the woman who took the American Stuffedtoy Duck can form some sort of cooperative.
We have doctors and lawyers on this thread and no acrimony. Kudos!
I am happy to see this issue come to light. The topic, tone and tenor of OR conversations has bothered me since my med/dent training days at UPenn, and I disallow it whenever I am in the room. More people should step forward and admit what they’ve heard, because an individual’s dignity is, in my mind, a right inherent in every respect to his liberty. Only now, patients will know in advance to demand the respect they should have otherwise been able to expect.
Molly Cooke is the sort of doctor I want — and the sort of doctor I want teaching other doctors.
I dunno, I think my pun was clever and it wasn’t at the expense of some poor unconscious patient in a compromising position.
Nick Spinelli
…In a two party state … In a one party state … I am not an attorney.
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This was one party state of mind, the doctor party, those whooping it up at their victim’s expense made them cool … in their blind eye.
I found this on the blog of the lawyer for the plaintiff:
Guess which party he was talking about.
Well Dredd, it’s up to us to grab the gastro of life while we can. 😀
Annie – honest to god, that is the worst pun I have ever heard. 😉
Annie
It’s incredibly ignorant to vilify gastroenterologists.
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This reminds me of the Fidel Gastro case of some years back, where an indoctrinated crew entered the bay of olog to grab gastro.
Annie
It’s incredibly ignorant to vilify gastroenter</bologists.
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This reminds me of the Fidel Gastro case of some years back, where an indoctrinated crew entered the bay of olog to grab gastro.
Al Zheimer
I do not see that it is defamation. They were birds of a feather, flocked together, and not talking to the public. Two doctors looking at a weeney do not defame when they speak to each other. But. I would not want butchers like this to even cut my toenail. The patient should be free to respond to their comments made in his presence. The response could be in the same vein as the comments about him. Like: what an ugly itchBay she is. etc
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Yep.
It is as if JT did a spoof on those who took over this blog’s comment section during the slurpie surge.
That quantity-not-quality commenter-collective is represented in the spoof by the story’s “exceptional docs” who have no regard for intellectually honest commenting, and we are the patients upon who their “cleaning up” is “benefiting.”
We end up getting a real charge out of it.
I do not see that it is defamation. They were birds of a feather, flocked together, and not talking to the public. Two doctors looking at a weeney do not defame when they speak to each other. But. I would not want butchers like this to even cut my toenail. The patient should be free to respond to their comments made in his presence. The response could be in the same vein as the comments about him. Like: what an ugly itchBay she is. etc
Dr. Tiffany “Ayn Rand” Ingham gives new meaning to the
Hippocratichypocritical oath.She works for the “American people” (a.k.a. corporations) Mr. “Safe Sedation” and Mr. “Safe Sedation Management” who have an interesting motto: “Once you are sedated we will safely “punch you in the face and man you up.”
Got Doc?
My dad was taken to the ER in a diabetic coma. His sugar reading was exceptionally high. While the nurses were administering insulin, one of them wondered why they were wasting time on him, he obviously was going to die. Dad could hear them even though he couldn’t be responsive. Being the cantankerous man he was and totally p.o’d. at their insensitivity, he recovered.
I always tell my drs before I go under that there shall be only happy talk and positive thoughts. 🙂 And then I go to my “happy place” before going under.
It’s incredibly ignorant to vilify gastroenterologists. Have you ever seen someone die of colon cancer? Have you ever seen anyone suffer with Crohn’s disease or any other inflammatory bowel disease? Sheesh.
What do you expect? What kind of person is attracted to a scatological profession? Not even plumbers get this close to crap. There is no refuge left for consumers. It’s the same old “us against them” mentality, a consequence of everyone hating their jobs, preferring the safety of drone work to that of adventure and rewards of entrepreneurship. Ironically enough, we are now a nation of hirelings, far from a time when the majority consisted of entrepreneurs of farmers, shopkeepers, doctors, lawyers, tradesmen, etc., all earning their way the old-fashioned way. Even volunteer firemen are nearing history. The critical mass of those willing to subordinate to a master today, has upended supply and demand of labor, to the extent that there are 20 qualified workers for every available job. And the corporate suspects behind illegal immigration are guaranteeing that incomes remain stagnant forever. No one should be surprised wages are so low, much less every hireling today needs an attitude adjustment (and welfare to survive; ACA is doctor welfare).
pete:
“if i were having a camera stuck up my a$$ the last thing i’d be worried about is what the doctors and staff are gossiping about.”
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What if they were wondering aloud if your sizable co-payment check had cleared the bank?
Tony/Paul:
“If the patient is suing I think HIPAA is out the window on this event.”
“. The patient “owns” the protection under HIPAA.”
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That’s true but the alleged negligent disclosure was made to the patient’s wife who discovered the recording.
if i were having a camera stuck up my a$$ the last thing i’d be worried about is what the doctors and staff are gossiping about.