Colonoscopy Patient Records Audio During Surgery and Doctor’s Nasty Behavior Leads to Litigation

Should you record your doctors as they perform surgery? If you do, you might be surprised by the results.

Preparing for a colonoscopy in Reston, Virginia, a patient activated the voice recording feature on his Smartphone. He kept the phone with him in the surgical suite. The patient explained that he wanted to record the doctor’s post-operative instructions because he was concerned that he would not remember them after coming out of anesthesia.

When the patient later played the recording, he was shocked by comments that were made during the surgery. His surprise turned into anger, which turned into a lawsuit and a $500,000 recovery.

Medical Malpractice

The tape reveals that the anesthesiologist, Tiffany M. Ingham, said, “I’m going to mark ‘hemorrhoids’ even though we don’t see them and probably won’t.” She then wrote a diagnosis of hemorrhoids on the man’s chart. The jury found that her falsification of the man’s medical records constituted medical malpractice. It awarded $200,000 for that claim.

Defamatory Comments

Before the surgery, the patient was asked about medications he was taking. He explained that he was taking a prescription drug for a rash on his penis.

During the surgery, a medical assistant mentioned the rash. Ingham cautioned the assistant not to touch it for fear of getting “some syphilis on your arm or something.” Ingham then said, “It’s probably tuberculosis in the penis, so you’ll be all right.”

The patient sued the anesthesiologist for defamation, alleging that she knowingly made a false statement to others that caused him harm. The anesthesiologist claimed she had a medical privilege to make statements about the patient during the course of the surgery and was immune from suit based on those statements. The court rejected that argument, presumably because the statements were false and were not made for a medical purpose.

When a private individual who is not a public figure sues for defamation in Virginia regarding comments that do not involve a matter of public concern, the person claiming to be defamed must prove that a statement was made, that the statement was false, and that the person who made it either knew it was false, had no reason to believe it was true, or negligently failed to determine whether it was true. The defamed individual can recover compensation for injury to his or her reputation, whether or not the person who made the statement acted maliciously. To recover punitive damages, however, the defamed person must prove that the person made the statement with malicious intent.

Compensatory Damages

The jury awarded the patient $100,000 in compensatory damages for defamation after finding that the remarks about syphilis and tuberculosis were both defamatory. Although there were not many people in the surgical suite when the statements were made, the fact that they were communicated to someone else was sufficient to establish a reputational injury.

In addition, the patient told the jury that he experienced anxiety, embarrassment, and sleep loss for several months. Regardless of the extent of the patient’s emotional injury, the jury was probably inclined to award significant damages because it was so offended by the anesthesiologist’s remarks.

Punitive Damages

The jury needed to find that the anesthesiologist made the statements maliciously before it could award punitive damages. A punitive damages award is meant to punish wrongdoing and to deter others from engaging in similar misconduct.

The jury likely found evidence of malice in other statements that the anesthesiologist made, including ““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 patient had already been sedated when the anesthesiologist made that remark.

In addition, the patient said he was getting queasy while looking at the needle in his arm. Moments later, after he was sedated, the anesthesiologist said, “Well, why are you looking then, retard?”

The tape reveals that Ingham wondered whether the patient was gay since he attended Mary Washington College, which was formerly an all-women’s school. Ingham made other comments suggesting that the patient was annoying, and told the gastroenterologist who performed the colonoscopy that he should concoct an excuse to avoid meeting with the patient after the surgery.

The jury awarded the patient $200,000 in punitive damages. The verdict sent a clear message that doctors who make nasty remarks about patients during surgery are not displaying the professional bedside manner that patients have a right to expect — even when they are sedated and cannot hear them.

Secret Recordings

Before you decide to make a secret recording of your operation, check the law in your state. The recording was authorized in Virginia because Virginia is a one-party consent state. As long as one person who is being recorded consented to the recording (in this case, the patient), the consent of others who are being recorded is not usually required by Virginia law.

Some states require everyone who is being recorded to consent to the recording. Some states make the consent rule dependent upon the context in which the recording is made. In addition, federal laws apply to the recording of certain communications (such as telephone calls). Before you secretly record your doctors (or anyone else), find out whether the law in your state allows you to do so.