Bad Medicine? Anesthesiologist Caught Ridiculing Sedated Patient

Tuesday, June 30, 2015
By Vivionne N. Barker, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law
 
 
In a medical suite in Reston, Virginia, a man preparing for a colonoscopy hit the record button on his smartphone’s audio recorder to preserve instructions from his doctor after the procedure. When the patient pressed play on his way home, he was shocked by what he heard. You may be shocked, too.


No Laughing Matter.

While listening to the recording, the man reportedly discovered that during his sedation, the medical professionals had cruelly mocked him, hypothesized that he had serious diseases (including a sexually transmitted disease), and joked about placing a false diagnosis on his chart, which they did, resulting in a charge of falsification of medical records. According to the Washington Post, the anesthesiologist, who had also worked in Central Florida, allegedly made comments such as, “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.”


Court Ruled in the Patient’s Favor.

The patient sued for defamation and medical malpractice. According to the Orlando Sentinel, after a three-day trial, a Fairfax County jury awarded the patient $500,000. He received $100,000 for defamation, $200,000 for medical malpractice, and $200,000 in punitive damages. The doctors’ attorneys argued that the recording of the procedure was illegal, but the plaintiff’s attorneys successfully noted that Virginia is a “one-party consent” state, which means that only one person’s consent is necessary to tape a conversation between several people.

Florida is a “two-party consent” state, meaning that it is illegal to record a conversation unless all parties consent. In fact, it is a felony to record others without their knowledge and consent in Florida. However, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication, such as conversing in a public place where they might reasonably be overheard. Factors that courts have considered in determining whether intercepted communication is protected include the location in which the conversation occurs, the manner in which communication is made, and the type of communication itself.


Tread Lightly Around Technology.

Today’s smartphone is effectively a powerful mobile mini-computer. Smartphones, along with tablets, e-readers, and other electronic devices, have become fixtures in everyday life. The proliferation of these devices results in new consumer behavior and expectations related to the consumption and recording of information. Healthcare professionals need to be very careful about how they interact with patients at all times. Technology has made it increasingly easy for patients to record their healthcare providers without their knowledge, resulting in growing liability risks for medical professionals. The bottom line? If you wouldn’t want your patient hearing it, don’t say it.


What Are the Lessons that Can Be Learned From This?

The first lesson that can be learned is one every lawyer learns in the first year of law school. Telling others that a person has a sexually transmitted disease when it is not true constitutes defamation per se. That is, the victim is not required to prove damages to win a judgment against the defamer.

Another lesson is that physicians must always, always, always avoid any offensive language, especially in the hospital or in an operating room or surgical suite. Studies have shown that sedated patients can be affected by their physicians’ comments. Good bedside manner is crucial! The comments of this physician could easily have resulted in charges that she was a "disruptive physician."

We also learn, it seems, that Florida continues to earn its nickname of "The Weirdo State." (Source: the numerous novels of Jim Dorsey and Carl Hiaasen.) Why do all of the weird ones come to Florida to settle? This physician was working at a hospital in Florida not far from Orlando when this news broke! She allegedly recently resigned her privileges with that hospital.



Comments?
 
 
What do you think about how the doctors behaved? Do you feel the patient deserved to be awarded the amount of money he received? How big of a role do smartphones play in your workplace? Please leave any thoughtful comments below.
 
 
Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.
 
The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, clinical privileges hearings, peer review matters, civil litigation, Medicare and Medicaid investigations and other types of investigations of health professionals and providers.
 
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
 
 
Sources:
 
Jackman, Tom. “Anesthesiologist Trashes Sedated Patient and it Ends up Costing Her.” Washington Post. (June 23, 2015). From:
 
http://www.washingtonpost.com/local/anesthesiologist-trashes-sedated-patient-jury-orders-her-to-pay-500000/2015/06/23/cae05c00-18f3-11e5-ab92-c75ae6ab94b5_story.html

Orlando Sentinel. “Trash-talking Lake County Doc Resigns After Jury Awards $500k to Unconscious Patient She Mocked.” (June 24, 2015). From:

http://www.orlandosentinel.com/news/lake/os-trash-talking-anesthesiologist-lake-county-20150624-story.html

Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996).
 
 
About the Authors:
 
Vivionne N. Barker, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.
 
 
 
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area.
 
 
 
KeyWords: physician, doctor, defense attorney, defense lawyer, anesthesiologist, technology, patient, complaint, medical lawyer, investigation, lawsuit, defamation, disruptive physician, medical malpractice, civil litigation, litigation defense attorney, medical professionals, healthcare professionals, clinical privileges, peer review, malpractice, health care attorney, health care lawyer, The Health Law Firm reviews
 
 
 
"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.
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6/30/2015

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