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

---

Jeffrey Segal, MD, JD

Published in Medscape: May 20, 2015 (reprinted with permission)  http://www.medscape.com/viewarticle/844251

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.

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.

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.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.

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.

The Case of the “Hot Rod” Tattoo

A Phoenix, Arizona, a strip club owner took an unusual bet a number of years ago: He agreed to get the words “Hot Rod” tattooed on his penis. The wager was for $1000.^[4]

Years later, the tattoo owner needed gallbladder surgery. He went to the Mayo Clinic branch in Scottsdale, Arizona. The chief surgical resident there saw the tattoo while inserting a urinary catheter and snapped a photo using his smartphone. The chief resident shared the photo with other surgeons at the hospital, either by showing it to them on his smartphone, directing them to a social media website where it was posted, or sending it to them as an email attachment (the complaint doesn’t specify the mode of sharing).^[4]

One surgical staff member alerted the media—in this case, The Arizona Republic, the state’s largest newspaper, which reaches nearly 2.2 million adults in Phoenix.^[5]

The resident who took the photo, realizing that what he had done was now about to be made public in a big way, “told me he didn’t want me to read about it in the newspaper first,” the patient told a reporter for the paper. The resident told the patient he had erased the image almost immediately.

“It was the most horrible thing I ever went through in my life,” the patient told the reporter. He apparently chose Mayo Clinic for treatment because his mother had had five surgeries there.

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

The patient was “deluged with interview requests from local, national, and international media, including network television stations.”^[6]

The Arizona Medical Board issued a public reprimand to the chief resident:

“The conduct and circumstances described above constitute unprofessional conduct pursuant to A.R.S. § 32-1401 (27)(z) (“[e]ngaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee’s spouse at the time of the contact or, immediately preceding the physician-patient relationship, was in a dating or engagement relationship with the licensee. For purposes of this subdivision, ‘Sexual Conduct’ includes: (iii) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.”)^[7]

“Respondent is issued a Letter of Reprimand for inappropriately photographing and viewing a patient’s penile tattoo,” the board concluded.^[7]

Photos Taken of Patients Should Have Clinical Relevance

State privacy and Health Insurance Portability and Accountability Act (HIPAA) rules addressing protected health information have changed recently. Requirements are more stringent, penalties more severe. Taking digital images will always have a role in diagnosis and treatment. But such pictures should have a legitimate medical purpose. And they become part of the private medical record. To the extent that such images will be shared, the patient must provide explicit permission—or the reason for sharing must be covered by an explicit exception in the HIPAA/Health Information Technology for Economic and Clinical Health (HITECH) code.

A picture that one believes is “de-identified” may not be so. If the doctor had posted a de-identified picture of the penile tattoo in a medical blog, no patient name would need to be included, and no other body parts—particularly the patient’s face—would need be added for the patient to still be identifiable. The tattoo artist, for example, might be able to connect the dots. The loser of the original bet might put two and two together. The standard for de-identification is whether re-identification is reasonably possible. As technology advances, re-identification becomes easier and easier.

More important, digital communication has made it easier to widely broadcast a “private” conversation. What previously might have been two doctors sharing a laugh over a patient’s tattoo can quickly morph into front-page news, a letter of reprimand from the medical board, and a lawsuit. While HIPAA and HITECH do not allow a private cause of action—action is instead taken by the Office of Inspector General for the Department of Health and Human Services—state privacy laws do allow a private cause of action.

The moral: Watch what photos you email or post online. Someone may share your digital pictures.

The Case of the False Teeth

An Auburn, Washington, a dentist was an avid hunter. He was also an avid prankster. One of his employees, a dental surgical assistant, raised potbellied pigs as pets. The dentist would periodically taunt his employee with accounts of his boar-hunting trips, including showing her a picture of a skinned pig hanging from a hook. The dentist predicted that the employee’s pet pig, Walter, would meet a similar fate. This was all part of the office camaraderie, at least from the dentist’s perspective.^[8]

The surgical assistant subsequently needed dental work. As a benefit to his employees, the dentist would perform such work for free. The assistant was sedated. Midway through the procedure, while the patient was unconscious, the dentist thought it would be great fun to place a replica of wild boar tusks in the patient’s mouth and snap some photos of her for the amusement of his staff.^[8]

The dentist had secretly ordered a second set of temporary teeth, shaped like boar tusks, in preparation for this prank. Removing the patient’s oxygen mask, he inserted the tusks into her mouth and took photographs of her with her eyes and mouth pried open. The dentist then completed the actual procedure, sans boar tusks. The procedure was a technical success.^[8]

The dentist didn’t plan to show the photos to his surgical assistant because he deemed them “ugly.” He did, however, show them to other members of his staff. During a subsequent birthday celebration for the assistant, the staff, apparently thinking the photos would evoke a laugh, showed them to her. The assistant didn’t find them amusing at all. She resigned and sued for battery, invasion of privacy, dental malpractice, and other assorted claims.^[8]

The dentist notified his professional liability carrier, asking for legal assistance. He argued that the claim in question took place during a bona fide dental procedure. The carrier denied coverage. The carrier would not provide a legal defense either.^[8]

As a result, the dentist was forced to settle with the employee for $250,000 out of his own pocket. He then sued his insurer for bad faith. The Washington State Supreme Court ruled in the dentist’s favor, awarding him $1 million.^[8] It concluded that the duty to defend is broader than the duty to pay a claim.

The $1 million award was a 4-to-1 return on the dentist’s original payment to the patient.

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.

References

1. Jena AB, Seabury S. Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636.
2. Abbott R. Unconscious patient says doctors mocked him. Courthouse News Service. April 22, 2014.http://www.courthousenews.com/2014/04/22/67225.htmAccessed March 14, 2015.
3. Virginia recording law. Digital Media Law Project. August 11, 2011.http://www.dmlp.org/legal-guide/virginia-recording-law Accessed March 16, 2015.
4. Phx surgeon faces discipline after photographing ‘Hot Rod’s’ genitals. Tucson Citizen. December 19, 2007.http://tucsoncitizen.com/morgue/2007/12/19/71932-phx-surgeon-faces-discipline-after-photographing-hot-rod-s-genitals/Accessed March 14, 2015.
5. Who we are and what we’re about. Republic Media.http://www.republicmedia.com/about-us Accessed March 14, 2015.
6. Segal J, Sacopulos MJ. Photography consent and related legal issues. Facial Plast Surg Clin North Am. 2010;18:237-244.
7. Consent agreement for letter of reprimand. Arizona Medical Board. August 8, 2008.http://azmd.gov/GLSuiteWeb/Repository/0/0/0/1/93375c93-5103-4876-9290-eed11418db7e.pdfAccessed March 16, 2015.
8. Woo v. Fireman Fund Insurance Company. FindLaw. July 26, 2007.http://caselaw.findlaw.com/wa-supreme-court/1168017.html Accessed March 14, 2015.
9. Scales A. Can this pig fly? How a dentist assaulted a patient and made a million dollars: part two of two-part series. FindLaw. August 15, 2007.http://writ.news.findlaw.com/commentary/20070815_scales.html Accessed March 14, 2015.
10. DoD News Briefing—Secretary Rumsfeld and Gen. Myers. US Department of Defense. February 12, 2002.http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636Accessed March 14, 2015.

---