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?
keebler – if I had the authority I would retrieve stuff from the spam monster. And on what authority do you get to seek the ban of anyone?? Who died and made you the Son of God?
Elaine, I did not question your veracity, read again. I do question our impartiality. We had disgraced GBer’s who policed this blog as have you and most other GBers. It was never impartial then, but that legacy lives on, due to friendship. That’s my point. Anon stepped up on another thread and seems to have ended this obsessive, destructive, behavior. A person in your role should have stepped in a long time ago. Maybe this guy just needs some guidance. He got some from Anon. He got negative reinforcement from Chuck. It’s all on the record.
You know Nick when you ASSUME things the can make an ass out of U. I am sure you’re ok with that. To chime in NO guest blogger has had any privilege revoked. There were some that got fed up with your constant debasing the thread and left on their own accord.
I think Jon has said that they are welcome back, Darren even invited one to come comment here. Your distortion of fact does not coincide with reality.
I see you are now debasing Elaine. She has no authority here except to post threads, she is a guest blogger. If any guest blogger retrieves anything out of the spam filter it’s out of the kindness of their heart. You should only be so generous with your time. If you start bashing Elaine or any other guest blogger I will seek your permanent ban from this site. I kid you not. Enough is enough.
It is possible you have not been cyberstalking, but that is what the keebler elf accused me of today. However, according to various definitions, you have been ‘trolling.’
feynman,
The Grace under pressure thread.
Paul,
Elaine is correct. No GB’s had their privileges revoked.
Nick,
I don’t care what it sounds like to you. If you don’t believe my response to you was the truth, contact Jonathan and ask him if I lied.
Annie,
That is one he*k of a terrific comment about unions!!
Paul s said:
Stalkers don’t get caught because they hide in the shadows
********************************************
Correct, Paul. So when you suggested I was a cyberstalker, I said no. I was quite open in contacting Mr. Spinelli.
Bullies are often surprised when their victims get together to defend themselves. Hence unions.
rafflaw – how long you been on here? I got this from an unimpeachable source, who wishes to remain anonymous.
Annie – if that is true then why the following article? Media Matters for America is resisting SEIU’s effort to unionize its staff
http://washingtonexaminer.com/article/2547370/
That sounds like a union response, Elaine. You are supposed to be a leader here. You could weigh in on this destructive person. You, as have other GBer’s weighed in to speak to me HUNDREDS of times. The hypocrisy is staggering. The integrity non existent.
Stalkers don’t get caught because they hide in the shadows.
I know that I have said that I notice patterns and I notice who allies with whom. Elaine has allied with the other side Nick, as you also have noticed. Annie, who is quick to condemn either of us, lets them fly. As I said to Annie, she talks the talk, but she doesn’t walk the walk. That goes for Elaine as well. There is a social justice issue here that is not being met by the liberal posters.
Paul
Stalking? Isn’t that something that is done secretly? I was quite open about it.
I risked making a fool of myself and getting tossed out.
Frankly, I think the “fresh air” did some good.
Nick,
My only duty as a guest blogger is to write articles for RIL. I have no other duty. I will, however, retrieve posters’ comments that get stuck in the spam filter if I’m aware that there is a problem with someone’s comment not having posted. Retrieving comments is not a required duty. I do it as a courtesy.
If you are having a problem with another poster, I suggest you file a complaint with Jonathan.
Now how about having a few words w/ Feynman, Elaine? You’re quick to defend our buds but shirking your duty if you don’t speak w/ him. I know the “enemy of my enemy is my friend” philosophy feels good. But it is myopic and always self destructive.
Paul, you got that from a person who makes assertions based on fallacy.
Annie – that person is going to be heartbroken you feel that way. Have you been on this blog since it was started?
So, you admit you have been cyberstalking Nick. Can we consider that bullying and harassment?
Paul Schulte
rafflaw my understanding is that one or more GBers have had their privileges revoked for not following the rules.
*****
That is incorrect. No guest blogger has ever had his/her privileges revoked.
raff,
sorry. Can you name the thread. I’ve had to bounce all over in order to speak to Mr. Spinelli.
Thanks.
Elaine – got that from an unimpeachable source. 🙂