Virginia Man Wins $500,000 After Recording Surgical Team’s Insulting Comments
Talk about adding insult to injury. A Virginia man woke up after his colonoscopy to learn that the surgical team had mocked, belittled and insulted him throughout the procedure.
Fearful that he would not remember the doctor’s post-op instructions, the man pressed record on his smartphone before receiving anesthesia. Upon listening to the recording after the procedure, he realized that the members of the surgical team began their rant as soon as he drifted off to sleep.
In addition to mocking the patient, the doctors hatched a scheme to avoid the man after the colonoscopy by pretending to receive an urgent page, instructed a medical assistant to lie to him, and stated that they planned to falsely note on the man’s medical chart that he had hemorrhoids.
The doctors’ actions resulted in much more than hurt feelings. The man filed suit in Fairfax County Court, asking for $1 million in compensatory damages and $350,000 in punitive damages for defamation and medical malpractice. Following a three-day trial, a jury ordered the anesthesiologist and her practice to pay him $500,000 in actual and punitive damages. The jury awarded $100,000 for the defamation claim ($50,000 for each of the comments about the man having syphilis and tuberculosis). The jury also awarded $200,000 for medical malpractice, and $200,000 in punitive damages.
Although comments between doctors typically would be privileged, the plaintiff claimed that his recording proved that there were other people in the room during the procedure and that they were discussing matters beyond the scope of the colonoscopy.
Also at issue was whether the comments were understood by others that were present in the operating room to be assertions of fact. The jury ruled in favor of the plaintiff on this issue.
In addition, the doctors challenged the legality of the recording given that they did not consent to it. However, Virginia is a “one party consent” state, meaning that only one person involved in a conversation (in this case, the patient/plaintiff) needs to agree to the recording.
This case highlights the importance of ensuring the professional conduct of medical staff members. While the facts in this case are egregious, hospitals and medical practices would be well-advised to educate staff members on the potential legal ramifications of bad bedside manner.
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Best Lawyers® 2021
Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2021 edition. Firm-wide, 44 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:
To see the full list of Foster Swift attorneys listed in Best Lawyers 2021, click here.