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?
Well, it’s time to move on, nothing to see.
Nick,
Thanks for speaking for Prof. Turley.
Paul, You can go over the archives and it is obvious the more anonymous people are the nastiest. It is just human nature and it isn’t going to change. By that I mean human nature won’t change, nor will the anonymous policy. That is not our call, and we have discussed this; we understand and respect that. Jonathan understands this, at least 2 commenters turned Gbers had to give up their anonymity in order to be elevated to that post. Jonathan acknowledges people who use their real names, give honest information on their background and resume, are better for civility. His blog, his rules. But, these last few days will certainly challenge it.
Paul,
No thank you.
rafflaw – although that would seem like a good idea to ignore them, when they send out 50+ of the same request on every thread you are on, it is a little hard to move on.
I have just returned from my friend’s funeral and see that a couple of threads have again turned into tit for tats with the same posters. I am too tired to go through that read all of these personal jabs to discern who started and who continued such personal nonsense. I was hoping that people would act like adults and just move on. Why continually respond to people who you do not like. Ignore them. If they violate a policy, email me. However, do not engage such people on this blog. Ninety nine percent of posters on this blog have never — I repeat NEVER — had a post deleted. It is not that tough. Just stick to the issues. Otherwise, it looks like you and they simply enjoy this type of low grade personal exchanges. This is not the blog for such a fetish. Please move on or move to a different blog.
Paul,
see my last comment. I am on the “side” of being civil to all posters, even if you don’t like them or don’t agree with them. If you think someone is abusing you, ignore them and move on. They will eventually get the message. And that message is good for all of us.
Ho Hum is petty, Annie. And that was part of the discussion that night. You were probably doing something important.
rafflaw – name a sockpuppet that you are aware of.
And once again a bully uses fallacious reasoning to make his erroneous point. Ho hum. Bringing in Professor Turley’s deceased friend, pretty low.
Keebler are you talking literally or figuratively about yourself?
NIck,
I am merely asking and I have asked other commenters on both sides of the fence to return to the issues of the thread and to use civil language.
The idea that the GB’s give tacit approval to people using sockpuppets is an interesting one. False because we don’t have the authority to “out” any sockpuppets, even if we cared.
Only you nick can prevent Forrest fires, and it’s best not to scratch hemroids, but you’re learning.
Somebody reinvented themselves, really now, who?
I don’t see any tactic approval by any guest blogger. I think they are getting tired of the constant banter and attacks that someone endures them to.
Larry, You seem to want to tell me what to say, what not to say, when to make a bet, now you want to be the final word on who is, or who is not, disgraced. You say nay, I say yea. What else is there to say? We disagree, no biggy. We do agree on what should occur now. The fact that you did not convey the same request to the hijackers proves you have no moral authority on this.
There have been 2 people who appeared from the past, under new names, w/ the intent of hijacking this blog. They have the tacit approval of some GBErs, encouraged by another, and a few other commenters. This does not bode well for this blog. Mr. Turley lost a good friend. The lack of response to that loss is sickening. This insane, obsessive, and hate filled hijacking is rubbing salt in the wound. Please, let’s just stop this crazy tit for tat.
Annie,
Nick nor Paul understands that it doesn’t take a medical person to know where the A-Holes are and who they are.
Paul,
your source is incorrect and the answer to the question is.. longer than you. And NIck, once again, there have been no disgraced GB’s here. Can we get off this invalid claim and continue talking about the Virginia Doctors issues?
rafflaw – I know you have been here longer than me. And in Nick’s defense I got a heads up about a former troublesome commentor who had returned. There are two who showed up last week who seem intent on hijacking the blog and in particular have gone after Nick and myself. I have not called anyone names, like I have been called. One of the things that bothers me about this blog, and I know it probably won’t change, is the anonymity of some of the commenters. I have put myself out there, in front of God and everyone, and they hide in the shadows and snipe and troll. Yet, I do not see any GB holding them to account, even if it is not their job. I do not see Annie waving the bloody flag of the Rules of Civility at them. What is do see is either active or tacit support.
Wow!
Bullies cry the loudest when they are hurt.
Annie – you have some stats on that bullies crying thing?
So the naming of the guest bloggers, is that your target list in that order? Or do we have more monkey see, monkey do games to come.
I DID NOT SAY THAT THEY WERE REVOKED. I said they were disgraced. And one continues to disgrace himself in pitiful comments. No one can be disgraced w/o their complicity. I did not debase Elaine. One of the pathologies here are men always paternalistically coming to the aid to the damsel in distress. She could end that pathology by very telling all the men who do that to STOP IT. Because Elaine can handle herself. But, for reasons only known to Elaine, she DOES NOT DO THAT.
Nick,
Do you suffer from TBI? Just askng, you’re now attacking rafferty and Charlton? You do need some anger managment I think.