Damnum Absque Injuria?

by Peter Morin on February 27, 2008

Sean Dubowik is a Phoenix strip club owner who had the words “Hot Rod” tattooed to a most private (and sensitive) part of the male anatomy.

This feature was noted with some degree of amazement, although probably not by the type of person Dubowik intended. His gall bladder surgeon, one Sean Hansen, made the observation during surgery prep, and made use of his cell phone to record the artwork. He then showed it around the hospital a bit, resulting in one of the surgical staff (the one with the conscience) calling Dubowik.

Dubowik said he’d gotten the tattoo on a $1,000 bet.

“It was the most horrible thing I ever went though in my life,” Dubowik said. He said he chose Mayo Clinic for treatment because his mother had five surgeries there.

“They were supposedly the best of the best. I have no complaints about the medical care I was given,” he said. “But now I feel violated, betrayed and disgusted.”

Query: can one who has his penis tattooed with “Hot Rod” on a $1,000 bet convince a jury — any jury — that he could be “violated, betrayed and disgusted”?
(AP, Dec. 17, 2007)

{ 24 comments }

1 John Smith 02.27.08 at 1:46 pm

I don’t know about “violated, betrayed and disgusted”, but it certainly is a HIPAA violation, not to mention medical ethics.

Are you saying that MDs should be allowed to take pictures of patients’ genitals for non-medical purposes without their consent and show them around to their friends?

If this was a woman, I think your reaction would be different.

2 Igor 02.27.08 at 2:05 pm

Peter, I’m sure that in today’s PC climate that there are at least six or twelve jurors that can be found that will feel he’s “betrayed…” etc.

…once they stop rolling on the floor and laughing their @** off…

Igor

3 Thufir_Hawat 02.27.08 at 2:19 pm

Though, hopefully for the plaintiff, it will not be considered a case of de minimis non curat lex.

4 Kaitie Tee 02.27.08 at 2:29 pm

Should any doctor with a conscience think it’s ok to violate his patient’s trust by taking pictures of the patient’s most private parts while he’s under sedation and then to show the pictures around the hospital for his own amusement?

Just because a patient makes a dumb decision doesn’t mean he deserves substandard care from his surgeon.

5 Slugger 02.27.08 at 2:34 pm

This is too easy. No, only the pure of thought and deed deserve protection. One transgression during your entire life voids your rights.
BTW, I’m a medical professional and consider the doctor’s actions worthy of censure. This is more serious than one stupid tatoo.

6 federalist 02.27.08 at 2:36 pm

Liability is clear here. Just because the guy is not someone we’d like our daughters to come home with doesn’t mean that he wasn’t treated in an appalling manner. This post is too condescending for my taste.

7 Jon A. 02.27.08 at 2:59 pm

“ball gladder”?

And why would anyone tatoo Hot Rod to their ear lobe?

8 anonymous 02.27.08 at 3:09 pm

Don’t even tell me you meant to write “ball gladder”.

9 wavemaker 02.27.08 at 3:21 pm

The typo was in fact that –an embarrassing one (my right hand is in a cast).

And of course there is a serious ethical violation by the surgeon, and a violation of the patient’s privacy.

I mean only to point out that a man who is in the business of selling prurient exhibitionism and treating his genitals like a signboard may face a challenge proving “humiliation and embarrassment” to a jury of ordinarily sensible people.

10 Samson Isberg 02.27.08 at 3:34 pm

The doctor has broken his code of ethics and ought to be censored for that. What he did was reprehensible, foul and puerile.
But the plaintiff here wants money; for what beats me. So a “ball gladder” surgeon shows pictures of this guys member to his colleagues – where is the economic loss in that? Where is the tort?

The doctor lost his honor when he took the pictures. The patient lost his when he embarked on extortion.

11 wavemaker 02.27.08 at 3:45 pm

Oh I surely think the doctor will have lost considerably more than his “honor,” but to clarify, the patient hasn’t actually sued yet (at least not that one can ascertain from public records) — he merely said that he was going to talk to an attorney.

12 Jim Collins 02.27.08 at 3:57 pm

What in the hell does his job have to do with it? There is a huge difference between choosing to “exhibit” parts of your body and having the choice made for you. Funny thing about strip clubs, the people performing in them are paid well and there is no shortage of people willing to apply. I know several lawyers who put themselves through college by working in these type of establishments. I almost married one of them.

13 Only take pictures with consent 02.27.08 at 4:33 pm

Regular reader of the site and generally agree, but the ethics of medicine expect us to treat all patients with respect regardless of questionable decisions (be they alcohol, tatoos, stds, etc). The MD in this case is clearly over the line and this is cause for dismissal from his post and likely a professional censure.

14 Deoxy 02.27.08 at 4:50 pm

The funny thing about this is that, unless the surgeon was telling people WHO IT WAS that he took a picture of (as opposed to simply showing what “some idiot” did to themselves), Mr. “violated, betrayed and disgusted” would remain unknown to anyone. Certainly HE would know, but very few others would actually know it was him. Now the world knows. Idiot, part deux.

That’s not to say that the doctor wasn’t behaving unethically or against HIPAA (all kinds of normal, ethical things violate HIPAA), as “humor” is not a good reason for this, but couldn’t a doctor take a photo of something for medical reasons and show it around for medical educational purposes? An unusual situation, symptom, etc? If not, well, there’s yet another strike against HIPAA (not that it needed any more).

15 David 02.27.08 at 5:00 pm

Actually, the tatoo reads: “Hotel Millenium Alaskan, Anchorage. Home of the 2008 Iditarod.”

16 Joe Bingham 02.27.08 at 6:43 pm

I heard that it said

“Hot R” because they ran out of room.

/duck

Seriously, though, probably no one had ever seen that tattoo before. Poor guy. Ha.

17 Joe Bingham 02.27.08 at 6:47 pm

It’s obviously unethical, though, and I can’t fault the guy for suing. Certainly not a meritless case, in the common sense of the phrase.

[Ed: IF he sues]

18 Ted 02.27.08 at 9:13 pm

David 5:00 wins.

But I agree with the commenters that the doctor is over the line here. It sounds like the hospital is taking care of it.

19 Todd Rogers 02.27.08 at 10:04 pm

What about the urban legend Rosta: “Welcome to Jamaica and have a nice day?”

20 CGage 02.28.08 at 7:13 am

The last time someone saw the tattoo, he voluntarily accepted $1,000.00 as payment for the sighting and for whatever *actual* pain and suffering was involved in getting the damn thing.

That sounds like a reasonable measure of damages for someone taking an unauthorized peek, especially in light of the fact that the ethical issues are being taken care of by the doctor’s colleagues.

21 Jeff Hall 02.28.08 at 1:48 pm

> Query: can one who has his penis tattooed with “Hot Rod” on a $1,000 bet convince a jury — any jury — that he could be “violated, betrayed and disgusted”?

I find it difficult to put myself in the mindset of the victim here. I presume that anyone can be disgusted by something. Learning that your doctor has taken prurient pictures of your genitalia while you were anesthetized might be a bridge too far for most people. Even for Mr. Dubowik.

I thought the most interesting fact reported here is that nobody in the operating room stopped the surgeon from taking the picture (and in fact the incident only came to light when the pictures were circulated around the hospital.) What other pictures were on this creep’s cell phone?

22 Jury? 02.28.08 at 7:23 pm

This will never see a jury. It is clearly worthy of summary judgment.

23 BlueNight 02.29.08 at 9:00 am

Doctor-patient confidentiality. Example by analogy: if someone was a pre-op transsexual, with all the work complete except the lower plumbing, a doctor would be sorely remiss to take pictures with his cell phone, showing the odd-looking contrast, the apparent hermaphroditism, and then revealing this to people who were not in the room at the time.

The law protects even those of dubious character, morals, and intelligence.

24 markm 02.29.08 at 10:04 am

What the doctor did is certainly wrong, but I’m thinking the appropriate damage award here is one dollar.

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