Last month, a Fairfax County, Virginia jury returned a verdict of $500,000 against a Bethesda, Maryland based anesthesiologist for her conduct during a colonoscopy procedure she oversaw. As reported by multiple news outlets, as the Plaintiff, a Virginia man, prepared for his colonoscopy in a medical suite, he pressed the record button on his smartphone, in an effort to capture the post-operative instructions that anticipated his doctor would give him. His smartphone, which was in his pants pocket and placed under the operating table during the procedure, ended up recording the entire procedure. When he returned to his home, the man pressed play and was shocked at what his phone had recorded. In short, what he heard was the entire operating room team, including his anesthesiologist and gastroenterologist, openly and viciously mocking him while he under anesthesia. For example, at the outset of the procedure, a medical assistant noted that the man had a rash. In response, the anesthesiologist warned her not to touch it, tell the young woman that she “might get some syphilis on your arm or something” then adding, “it’s probably tuberculosis in the penis, so you’ll be all right.” The anesthesiologist was also recorded telling the sedated man that “after five minutes of talking to you in the pre-op…I wanted to punch you in the face and man you up a bit.” In addition to the shocking commentary, the health care providers also instructed an assistant to lie to the man after the procedure and how the doctors would endeavor to avoid him after the colonoscopy. Lastly, the doctors also discussed placing a false diagnosis on his chart – stating that the man had hemorrhoids, when in fact he did not.
In reaching its ruling, the jury awarded the man $100,000 for defamation (spoken untruths), $200,000 for medical malpractice and $200,000 in punitive damages. Importantly, although the conversations were confined to the operating room and operating room team, Virginia law clearly stated that slander like the comments made by the health care providers need not be widely published, but rather, need only be said by one party to another and be understood by the second party as being a true fact, when in fact it is not. Although the defense attorneys attempted to argue that the comments were privileged communications between physicians regarding the diagnosis/condition of the plaintiff, the trial court disagree, noting that the conversations far exceeded the scope of the colonoscopy and involved multiple other health professionals in the operating suite. The defense lawyers also attempted to argue that the recording had been made illegally, however, Virginia is what is known as a “one party consent” state, meaning only one person has to agree to the recording for it to be legal.
This verdict has been widely described as one of the first of its kind by legal practitioners and scholars. Given the advances and pervasiveness of today’s technology, this author theorizes that it likely will not be the last. Although patients who are undergoing more traditional types of surgeries likely will not have cell phones or other recording devices in operating rooms, with more and more procedures taking place in office-type surgical suites, physicians must now be cognizant of not only how the perform a procedure, but the things they say during it regarding a patient. Cases such as this one only further strengthen the position of advocates for cameras in all operating rooms so that patients can be sure their rights are not being violated and that the skills of their surgeons can be checked and reviewed in the event of something going awry.