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

Jeffrey Segal, MD, JD

Disclosures

May 20, 2015

In This Article

Unflattering Remarks May Get Overheard

Making ribald comments that were never meant for the patient to hear while a patient is unconscious is not an uncommon occurrence in the OR. Doctors are human. They sometimes need to blow off steam. Unflattering remarks typically take place in private, with no patients within listening distance. Some of the commentary may be less than professional.

But who would guess that intraoperative banter, whether sophisticated or puerile, would ever be heard by the patient? While most doctors would never assume that a phone is recording their conversation in the operating room, most anesthesiologists would at least consider the possibility that the patient may not be fully unconscious.

While uncommon, some patients experience the full effects of neuromuscular paralytic agents but they still perceive pain. They can also perceive what is happening to them and around them, but they are powerless to do anything about it. In such circumstances, a patient's blood pressure and pulse may rise, and the anesthesiologist may determine that more sedation is needed.

As such, doctors should assume that some conversations may be heard by patients—even when the patients are presumably sedated and unconscious.

As for how patients use technology, many patients now record their conversations with doctors in the office. Usually they ask for permission. But not always. Whether such recordings can be admitted into evidence at a later date depends on state law. Some states mandate a "two-party-recording" rule: The two parties to a recorded conversation must give their permission. Other states mandate a "one-party-recording" rule: Only one party, generally the person who is doing the recording, must consent.

Virginia has a one-party consent law for recording conversations.[3]

Finally, claims alleging defamation and intentional infliction of emotional distress are not generally covered by professional liability insurance policies. The carrier may provide a lawyer to defend the doctor, because the duty to defend is broader than the duty to pay a claim. But most carriers will not write the check for a judgment or settlement related to such claims.

The lesson: Watch what you say, even around a patient who is unconscious. Alternatively, some surgeons place earphones over the patient's ears—or insert earplugs. The notion that remarks made privately will remain private in this day and age is often mistaken.

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