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?
You would think a responsible GBer would be inclined to intervene in this constant and obsessive harassment. Although one GBer, Chuck, joined in on the Republican Governors thread last night. Then, a disgraced Gber joined in. Disgraceful.
Okay, now I am totally confused. What is a GBer? Guest Blogger?
Mr. Spinelli
I don’t want to embarrass you. The courtesy of a reply is requested.
Fatal Attraction.
No it is not, just another fallacious assertion from someone who thinks they know it all and clearly doesn’t. Ho hum.
Pol Pot first killed all the intellectuals. That included anyone who wore glasses.
Mr. Spinelli,
Sorry to interrupt.
The courtesy of a reply to my inquiry as to your authorization in shutting down our thread the other evening is requested.
Did Prof Turley ask you to shut it down? A simple yes or no will be great.
I don’t understand why you don’t reply. A “yes” would indicate his regard.
Thanks!
Lol!!! Your inability to read just proved your knowledge of Pol Pot is limited to The Killing Fields. As I said, previously a smart person would just walk away. You doubled down on 16. looks like you about to strike out on this blog also, but you’re going down swinging, at pitches above your head. You can’t make this stuff up, Lol!
Samantha, That’s a bold and interesting assertion you just made about colonoscopies. I’ll research it based on that assertion. However, you did not include family history in the use of colonoscopies. Prior to my spending time on your controversial assertion, please tell me if you agree that family history would be a critical reason for the procedure. Because, if someone does not include family history in any analysis of reasonable and necessary treatment, well they are full o’ shit.
And a smart person doesn’t automatically assume that another commenter isn’t as knowledgeable as they are. Why would a smart person assume that another commenter hasn’t seen “The Killing Field’s”? Some people ASSUME way too much.
Annie – and that is why I respond to keebler and you. “A smart person does not let a bully bully. You don’t get a free pass”
feynman, I comment figuratively and literally. Whichever way you interpret is up to you. But if your own diet is a consequence of Madison Avenue, it is certain you will never make it to old age, and if you do, you’ll be miserable from massive medical intervention along the way, at great cost not just to yourself but to all healthy folks as well. As for colonoscopy, it’s one of the most lucrative medical procedures out there, dangerous and lethal, too, over-performed by doctors looking for dollars where the sun don’t shine. The medical profession itself now says that colonoscopy is not as necessary. They wouldn’t have arrived at this decision unless as many people were dying from the procedure as we’re dying from colon cancer itself. Or would they?
A smart person does not let a bully bully. You don’t get a free pass.
Paul, This is where you walk away from the middle school girl and not go down to her level. Word to the wise.
I am a history teacher and I loath people who think they know what they are talking about and piss on the millions of people executed just because they heard about Pol Pot, or saw The Killing Fields. “A little knowledge is a dangerous thing.” To question my intelligence says everything about you and nothing about me. A smart person would just walk away from this one.
Paul, it’s not all about you, ya know. I may have been speaking generally. You and your buddy need a Serenity Now moment?
Annie – since you addressed your comment to me I take it personally. And aren’t you the one who got huffy when I asked if you were getting testy the other day? You talk the talk, but you don’t walk the walk, Annie.
Spinelli, excitable aren’t we? I was referring to the notion by Pol Pot that the educated were an enemy to a society. I would think that any intelligent person would’ve understood this.
Pol Pot???? Now that is a horribly IGNORANT, hyperbolic comparison. Pol Pot EXECUTED millions of people. Sickening to read that, just sickening.
Paul, people get run over by buses too. What are the stats on deaths in childbirth a hundred years ago as compared to today? I sometimes wonder why some people seem to be increasingly veering toward anti science and anti progress. Shades of Pol Pot and educated people. Push religion down the throats of Americans and disparage science, scary regressive stuff.
Annie – you are quite capable of looking up the stats on deaths in childbirth. You were just painting with a broad brush and I was trying to bring some political correctness to the matter. And again you add a broad brush insult. Goodness, Annie. At what point did I disparage science or push religion. And progress is not always good for us or even you.
Mr. Spinelli,
Sorry to interrupt.
The courtesy of a reply to my inquiry as to your authorization in shutting down our thread the other evening is requested.
Did Prof Turley ask you to shut it down? A simple yes or no will be great.
Thanks!
Annie, kids hate spinach, too. (imagine smiley face here)
halvie, There is a post yesterday where Republicans have used a slimy attack on a Dem guv candidate. The attack is that attorneys should not represent criminals. It is wrong, and what you just said about attorneys not representing doctors is just as wrong. But, the First Amendment affords you the right to be wrong.