Patient undergoing sedation for colonoscopy leaves cellphone recording, which picks up a string of insulting remarks made by anesthesiologist and others while he was under. The comments alleged to be defamatory were mostly heard only by other health workers present, so reputational damages are at best uncertain, but a Northern Virginia jury valued the sheer indignity of it all at $500,000. [Washington Post, Orlando Sentinel]
7 Comments
I believe part of that award was for things other than defamation that were on the tape – like stating that they were going to write a false diagnosis on the patient’s chart (and then doing that), telling others to lie to the patient about certain things, etc. For THAT, they should lose their licenses to practice medicine.
I’ll agree that the defamation award was excessive (and many of the insults would have been protected speech anyway) but it’s not like that was the only problem or the only part of the award.
Much of their conversation was about what a jackass the patient was. I don’t know what he did or said that annoyed them all so much during the presumably brief time when they were prepping him for the procedure. But their comments make it clear that they considered him to be outstandingly obnoxious in some way. To my mind, the fact that he sued them for $1.75 million confirms that they were right.
The defamation award wasn’t just excessive. it was preposterous. One cannot be defamed by a joking statement when all of the people hearing it know that it is not true and is not intended to be taken as true.
They wrote hemorrhoids on the chart, that was the only “false diagnosis”. Someone told me that technically, everyone has hemorrhoids anyway, so it’s not really false. Apparently one juror wanted to award nothing, and another wanted to award a lot more, so the $500k was a compromise. The plaintiff attorneys asked for a ludicrous $1.75 million.
We all have hemorrhoids in the sense that the anatomical structure is present in all of us. The expression “to have hemorrhoids”, however, refers to to having the pathological condition in which the hemorrhoids are inflamed or, worse, thrombosed. Most of us do not “have hemorrhoids” in that sense. Telling a patient whose hemorrhoids are in a normal state that he “has hemorrhoids” is therefore a lie and constitutes malpractice.
While I have to agree that the award for defamation does not make sense since those to whom it was published were in on the joke and did not believe it, the behavior described was seriously unprofessional.
As an anesthesiologist myself, the behavior is reprehensible.
As a non-lawyer, I wonder about the admissibility of the recording, as even in a one party state, doesn’t the party have to actually be conscious to be considered part of a conversation? Otherwise none of the conversants were aware of the recording making it illegal. Further, his lawyers comments suggest that even the patient was unaware of the recording occurring (tape being accidentally lest on) thus establishing that no one party to the conversation was aware of or consented to recording.
If a recording is made illegally by a private party, that doesn’t necessarily exclude it as evidence – it may merely subject the maker to a penalty. The exclusionary rule is a rule only of criminal law. It is possible that the law of the state in question would treat an illegal recording as admissible. And in this case, since the patient was not aware that he was making the recording, he presumably could not be criminally liable even if the consent requirements were not satisfied.
Yeah, I’m going to go ahead and say that you don’t get any expectation of privacy when you say something right in front of someone, even if he’s supposed to be unconscious. They couldn’t be sure he wouldn’t remember it later, or that he couldn’t hear it at the time even if the drugs would make him forget.