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

Jeffrey Segal, MD, JD

Disclosures

May 20, 2015

In This Article

Don't Play Pranks on an Unconscious Patient

The dentist got lucky. Settlements and judgments for employee-related matters sometimes reach seven figures. If one of the claims had alleged a hostile work environment, a jury might have delivered such a payout to the plaintiff.

Still, there's an important point to be made related to a professional liability carrier's obligations. Even if a case does not fall into the neat category of medical or dental malpractice, the carrier is required to investigate and provide a legal defense—at least until it's crystal-clear that the case is not covered.

The dentist's policy stated that the carrier would defend any claim brought against the insured "even if the allegations of the claim are groundless, false, or fraudulent." The underlying legal question was whether inserting the boar tusk replicas was so far removed from the procedure that the procedure, in effect, ended when the boar tusks were inserted and began again when the procedure was restarted.

The court wrote: The dentist's "practical joke did not interrupt the dental surgery procedure, as the [carrier] argue[d]....The acts that comprised the practical joke were integrated into and inseparable from the overall procedure."

Unsurprisingly, case law on coverage for inserting boar tusks into anesthetized patients is rather thin. The carrier pointed to a line of cases denying coverage where physicians had sexually assaulted drugged patients. Those decisions held that such assaults had no conceivable relationship to medical treatment and therefore did not trigger a "professional services" liability policy.

The court of appeals thought this disposed of the dentist's case, but the Washington State Supreme Court held that an insurer must also give the benefit of any legal uncertainty to the policyholder.[9]

The lesson? Just because a patient is sedated and unconscious, it is not an invitation to do anything to the patient that is not part of the clinical procedure at hand. Not every misadventure along these lines has such a profitable outcome for the provider.

Assume There Are No Secrets

In each of these cases, the providers involved mistakenly assumed that they could make jokes at an unconscious patient's expense, or pull "harmless" pranks on an unconscious patient, without the patient finding out, much less bringing a lawsuit and claiming harm. We are often limited by our assumptions and our imagination.

As former Secretary of Defense Donald Rumsfeld once said:

"... as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult ones."[10]

The practice of medicine includes all three epistemological categories. Doctors get sued for matters that they properly anticipate. They also get sued for matters that only seem obvious in hindsight. Always think twice before you do something that is not clinically warranted. Even if the patient is unconscious, although unlikely, it may ultimately land you in court. And you'll be fully conscious of that process.

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