A year ago, we discussed a bizarre case where a colonoscopy patient (identified only as “DB”) is suing over abusive comments made about him by his doctors . . . while he was under anesthesia. “DB” had failed to turn off his cellphone which continued to record comments of the doctors ridiculing him, his body, and his character. While the alleged defamation did not leave the operating room (that is until his lawsuit), he alleged that it was still defamation and Dr. Tiffany Ingham and others for $1.35 million in damages for defamation, infliction of emotional distress and illegally disclosing his health records. Well, after a three-day trial, a Fairfax County jury ordered the anesthesiologist and her practice to pay him $500,000.
On the tape, 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.” They all discussed avoiding DB after the surgery. As discussed earlier, defamation does not require contemporary knowledge and indeed it is often discovered later by the victim. Moreover, it only requires publication to other individuals, not widespread disclosure or publication.
The jury appears to have rejected any argument that this was merely juvenile humor or even opinion. Clearly they are expressing their opinion as to his being a “wimp” or “retard.” Dr. Ingham, 42, could not be reached for comment and she no longer appears to work out of the Aisthesis anesthesia practice in Bethesda, Md. State licensing records indicate she has moved to Florida. The gastroenterologist who performed the colonoscopy, Soloman Shah, 48, was dismissed from the case, but he is shown engaging in the juvenile comments.
The jury awarded the man $100,000 for defamation — $50,000 each for the comments about the man having syphilis and tuberculosis — and $200,000 for medical malpractice, as well as the $200,000 in punitive damages.