Recently, a Fairfax County jury rendered a verdict against an anesthesiologist for defamation and medical malpractice. The award included $100,000 for defamation ($50,000 each for the comments about the patient having a sexually transmitted disease and tuberculosis), $200,000 for medical malpractice and an additional $200,000 in punitive damages. The story, text of the doctor’s statements and actual audio have been widely circulated by news and social media.
All of the defendant’s statements were made during the course of a colonoscopy while the patient was sedated and asleep. Unfortunately for the doctor, the patient had his cell phone set to record and captured all of the doctor’s callous remarks. Apparently, she was unfamiliar with the old adage: “Be careful what you say, you never know who is listening.”
While lawyers may debate the existence of an appropriate legal basis for the verdict, and whether or not any appeal will likely ensue, the message sent by the jury is clear: unprofessional, inappropriate, rude and disrespectful conduct by a physician will not be tolerated.
To prevail in a medical malpractice claim, a plaintiff must prove that the defendant physician fell below accepted standards of care and, in so doing, caused injury or harm to the patient. In this case, the defendant physician made a false medical entry in the patient’s chart, documenting that he had hemorrhoids when she knew that was untrue. While that act unquestionably constitutes a breach in the standard of care, the defense argued that the patient suffered no real damages as a result. Yet, that mattered little to the jury, as reflected by their verdict.
Defamation is the communication of the false statement that harms the reputation of an individual. A successful defamation claim requires proof that the false statement was communicated to a person other than the plaintiff and was believed to be true. Ordinarily, comments between physicians would usually be privileged. However, the plaintiff in this case alleged that his recording showed that there were other people in the room during the procedure discussing matters beyond the scope of the colonoscopy.
Whether the jury believed the defendant anesthesiologist’s statements about the patient having syphilis and tuberculosis were true or simply inappropriate banter also mattered little to the jury. They awarded damages for two separate, disparaging remarks made among many by the defendant.
This verdict appropriately sends a message to not only the defendant anesthesiologist, but to all healthcare providers. This is a clear reminder by the public to doctors that their conduct should be professional at all times and that patients must be treated with respect and dignity, whether they are awake or under anesthesia.
Taking the oath to practice medicine carries with it the expectation of integrity, which this defendant doctor clearly failed to demonstrate. Her shameful conduct not only harmed the patient; she also dishonored her profession and harmed its reputation as well. Patients having medical procedures under anesthesia should never have to wonder whether they are the subject of rude, baseless remarks by the healthcare providers—whether made in jest or not. One hopes that the medical profession agrees and supports this jury verdict. After all, the jury got it right.