These Docs Behaved Badly, but Should They Have Been Sued?

Jeffrey Segal, MD, JD

Disclosures

May 20, 2015

In This Article

Three Highly Unusual Lawsuits

If you practice medicine, odds are that eventually you will be sued, face a medical board complaint, or experience some other legal headache. If you practice in a high-risk specialty such as neurosurgery, the likelihood that you will be sued at least once by the time you reach age 65 is much higher.[1]

But some trips to the courtroom or licensing board do not fall neatly into the category of medical malpractice. Some interactions with patients may trigger different liabilities.

One especially ticklish type of interaction involves a doctor or other healthcare provider saying or doing something that is puerile or worse while the patient is unconscious during a clinical procedure—and the patient, when he or she regains consciousness, finds out about it and brings a lawsuit as a result, claiming that he or she was harmed.

Such situations may beggar belief twice—on one hand, that medical professionals could possibly say or do the outlandish things they are credibly accused of, and on the other, that their behavior, however inappropriate, would be grounds for a lawsuit that uses highly creative if not torturous logic to make a case for patient harm.

Here are three such Ripley's Believe It or Not! cases. See what you think.

The Case of the Dissing Doctors

In Fairfax, Virginia, a patient, DB, sued his doctor (technically, the doctor's employer) for making fun of him during a colonoscopy.[1]

The patient was anesthetized and had no actual recollection of the procedure. But the patient stated that he had made a recording of the OR banter on his smartphone. The patient justified the recording, alleging that he recorded the post-op instructions while he was awake. He then didn't stop the recording, and his phone joined him in the OR. Presumably it was placed in a clothes bag that accompanied the patient on the gurney.[2]

Because of the unflattering things that were said about him when DB was unconscious, and which the smartphone faithfully captured, DB sued for defamation and intentional infliction of emotional distress.[2]

A claim for defamation must prove that a false statement was published—or distributed—to a third party, and that the false statement injured the plaintiff's reputation. The two primary defenses for a claim of defamation are that the questionable statement was (a) actually true, or (b) really an opinion and not a false statement.

A claim for intentional infliction of emotional distress must demonstrate that the defendant's outrageous conduct caused emotional distress.

Here's the list of allegations[2]:

"On April 18, 2013, during a colonoscopy, plaintiff [DB] was verbally brutalized and defamed by the very doctors to whom he entrusted his life while under anesthesia," the complaint states.

DB claimed that two doctors mocked him from the second the anesthesia kicked in.

"The moment that plaintiff became unconscious, [one of the doctors] commented to all of the others in the operating room 'Oh—Oscar Mike Goss.' That is a thinly disguised substitute for the expression 'OMG,' which is an expression of both exasperation and mockery, and is a well-known abbreviation for 'Oh my God,'" the complaint states.

One of the doctors "started to mock, and then continued to mock, the amount of medicine required to anesthetize plaintiff," the complaint continued.

One of the doctors "agreed that plaintiff would be 'eaten alive' and also jokingly discussed a hypothetical of firing a gun up a rectum." DB claimed that his phone caught one of the doctors talking to his unconscious self, saying, "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."

The recording allegedly caught one of the doctors discussing DB's prescription medication and an irritation on his penis.

"A medical assistant at [the facility] touched plaintiff's penis during the colonoscopy," the complaint states. "Although plaintiff's penis is not involved in a colonoscopy, the medical assistant noted there was not 'much of a penile rash.' [One of the doctors] responded, 'No, you'll accidentally rub up against it. Some syphilis on your arm or something.'"

The complaint added: One of the doctors "then stated to all present in the operating suite that 'It's probably tuberculosis in the penis, so you'll be all right.'"

DB argued that he doesn't have either disease.

The complaint stated that the doctors talked about "misleading and avoiding" him after he woke up.

"A female medical assistant at [the facility] recalled that plaintiff had earlier warned that he passes out when looking at the placement of an IV, to which [one of the doctors, when the patient was sedated and unconscious] asked [retroactively], 'Well, why are you looking then, retard?'" the plaintiff claimed. "[One of the doctors] also described plaintiff as a 'big wimp.'"

In a final remark caught on tape, one of the doctors allegedly said she would make a note on the man's file that he had hemorrhoids, even though he didn't.

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