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?
Annie help. fix the spelling.
samantha,
Surely that’s a joke. I hear colon cancer can be pretty lethal. Perhaps you want to blame that on the patient. How should one handle Chron’s ?
How should we make people adopt this ‘health religion’? Michelle Obama is criticized for encouraging a healthy diet. Women often died in childbirth back in the good old days, BTW. Town barbers removed rotten teeth with pliers. Shaman’s rattled bones and cured the sick.
Annie – kids hate Michelle Obama’s healthy diet, it does not give them enough calories to get through the afternoon classes. Women still die during child birth (the wife of the State Treasurer of Arizona died that way a couple of years back). Barbers were known as barber surgeons, hence the red and white poles in front (supposedly from hanging out clean and blooded towels to dry). Alternative medicine is taught in several medical schools and some ancient remedies have been found to have some efficacy. One of my former students got a Masters in acupuncture and is practicing in London.
“What do you expect? What kind of person is attracted to a scatological profession?”
Let’s just let everyone who gets any digestive ailment care for themselves. You know what? Blood is icky, too, so no bleeding in my hospital, thank you very much. And if you sneeze, so much as a wet drop hits the floor and you’re outta here.
knauer wrote: Let’s just let everyone who gets any digestive ailment care for themselves.
Exactly. Maybe everyone will get religious about diet, swear off fast food and processed food, avoid alcohol and tobacco, prepare their own meals, adapt healthy lifestyle and live to healthy old age like we were all meant to, without doctors, hospitals, and pharmaceuticals. As it is, most people’s health is a train wreck, the costs of which are not just forced upon themselves but also upon the healthy, too. Only a socialist believes that’s fair. I enjoy earning my own way, but I do not like feeding, clothing, and providing housing for the able-bodied, any more than I want my income diverted to corporate subsidy.
Sofia, what if the patient in this case is female, and the surgeon is male, who has the habit of making crude comments about body parts, such as comparing yor ass to a hippo’s? Unless you’re sexist, you’d have to be okay with it, too.
Me, I want a real doctor, not some pompous, reckless dirtbag like this piece of excrement whose behavior and personalty are no doubt distraction from her medical skills, which might border on incompetency.
When it comes to doctors, keep in mind that the medical profession makes no distinction between the student who graduates at the top of the class and the student at the bottom of the class, both are called doctors. Bad doctors are not that hard to spot. But if you don’t care, then go ahead, risk getting an infection, or revision surgery, or a sponge or medical instrument left inside you, or the wrong leg operated on, or worse, dying on the OR table.
Surgeons I know will not stand for horse play in the OR, and are partial to specific anesthesiologists and staff, demanding absolute discipline and professionalism. They know it’s not just your ass on the line here but their career too.
Physicians know better than anyone, how intensely corrupt, profit-obsessed and inhumane their profession has become, and the best among them have too often chosen to either ignore or make excuses for this sort of behavior, and far, far worse. Words condemning this horrific disregard when it’s exposed are meaningless if action against the offenders isn’t taken whenever it’s witnessed.
Lawyers who agree to defend these cretins, rather than shun them as they certainly would a less affluent potential client, are equally culpable for it’s widespread continuance.
The unholy, greed-fueled alliance between the Medical community, the Insurance Industrial Complex and Big Pharma has made healthcare in this country a treacherous game of Russian Roulette, which no amount of fluffy, AMA backed publicity or falsely portrayed TV series can adequately gloss over.
It’s time for us to grow up as a nation and stop enabling the worst of EVERY profession to run amok.
Reining in those who hold our very lives in their hands would be a sensible place to start.
“Somewhere out there, by definition, is the worst doctor in the world, and such a person will be taking patients tomorow.” — George Carlin
I don’t know about the rest of you, however, in todays Medical procedures I have to use the surgeon acceptable to the insurance company. Why are we not seeking restitution from the employer who limits our choices ? He who pays the fiddler calls the tune – or is that no longer true under ACA ?
buckaroo – I had not thought of that, but given some insurance policies you are stuck. Right now mine is a Cadillac policy but I am sure Obama will get rid of it before his term ends. I can see any doctor I want.
Paul Schulte
… I take forever to come out of it. I now tell my doctors to schedule me first or someone is getting overtime watching me sleep.
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He hath repented! Praize Gawd! He who sees nothing sayeth.
Dredd – you really need to focus on the topic(s) at hand.
Doc, I wondered that too. Or are people just plain mean? Any nurses involved in this should not escape blame either. An apology would certainly be a start.
While intended to be light-hearted humor, Tom Blanton’s comments may yield some useful suggestions. An apology is clearly indicated, by all in the room; not only the doctors. More importantly, with respect to patient rights, everyone should be allowed to be accompanied into the OR, even though it will mean the “guardian,” who could ultimately serve as an eye-witness, will have to scrub in. And I forget who asked the question, but they were right: what on earth did this person do during the consult and initial exams to result in such otherwise inexplicable disdain from the surgeon?
I think the British expression is the patient got up her nose. 🙂
bettykath, Living to spite those b!tches is not a bad plan! I think you’re a chip off the old man’s block.
When I am out ‘my junk’ is the last thing I am worried about. I am worried about coming to. 😉
i would be more concerned they were talking about my “junk”. they keep that room cold.
Another point, although not on liability one way or another: some patients aren’t totally responsive to light sedation. I had an endoscopy about a year ago, and woke up while the scope was still in my esophagus. I also scared a recovery room nurse after general anesthetic following knee surgery when I started talking to her almost upon admission. A young child was crying, and it woke me up. A doctor should never make the assumption that the patient is “under”. I’ve since told doctors that I have a high anesthesia threshold.
maxcat – my experience is just the opposite, I take forever to come out of it. I now tell my doctors to schedule me first or someone is getting overtime watching me sleep. 🙂
I think the doctors should have immediately apologized and given the the poor schmuck his next colonoscopy on the house and throw in a free video of all the witty banter. Maybe even let the guy bring a few of his friends along and serve some chips & dip with some beer.
LOL!
Don’t be scared, be friendly, just bend over and crack a smile.
Annie,
You are scaring me. I am seeing my gastroenterologist next week!! 🙂
Paul Schulte
…I was never a fan of puns, but this one gave me a visual that will take months to get rid of.
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I don’t know, I thought you pards joke about the one lawyer in heaven was funny.
I even laughed.
So, to help you with coping with your sincerity, and shortening the time it takes to recover from punishment, here is the relief you justly deserve:
A fiery preacher was preaching a hard core going to heaven sermon.
Beads of sweat dripped from his brow and tinkled down his front like water droplets in an Amazon waterfall.
He worked his parishioners into a frenzy by describing the ecstasy of entering the pearly gates and being with only T-party folk for the rest of the rest.
The place was hot, the crowd was juimping, when he thundered out STAND UP NOW IF YOU WANT TO GO TO HEAVEN.
Everyone stood up!!!!
Except for a young, good looking kid in the front row.
The eyes of the preacher scanned the crowd like the eye of Sauron, then flashed and zeroed in on the now sheepish young man.
DON’T YOU WANT TO GO TO HEAVEN!!!! young man … STAND UP AND ANSWER!!!!
The young man slowly stood up and said “Yes, preacher, it is just that I thought you were getting up a load to go right now.”
Darren Smith,
Good points.
And let’s consider this:
(Nyck & Bunyon, PC).
Annie – we all think our material is funny, that includes me. However, unless someone actually laughs we might just be fooling ourselves. Now as you are aware our sense of humor changes are we get older. I no longer find potty or fart jokes funny. When I was 5 I laughed myself silly. I was never a fan of puns, but this one gave me a visual that will take months to get rid of.