If you ever thought that you were getting along well with your physician, including having a relationship of mutual respect, you may want to be a tad more circumspect the next time you get together. A jury in another state has awarded a man $500,000 for medical malpractice because his physicians mocked and ridiculed him during a colonoscopy procedure in 2013. Once again, modern technology was able to preserve a real-time encounter for use as evidence -- this time, the voice recording inadvertently took place on the patient's smart phone while he was under anesthesia. Under the circumstances, it is likely that a similar finding of liability would be entered by a jury in Oregon.
After he was returning home, the patient turned on the phone and realized he had recorded the whole procedure. He heard his treating physician say, " 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 doctor also mocked the amount of medicine needed to anesthetize the patient. The doctor and others joked about how many medications the patient took.
One medical assistant touched the man's genitals and joked that she may have contracted a disease. The doctor reportedly said to the assistant that she might get "some syphilis on your arm" and also that it was probably " tuberculosis in the penis" and that she would be all right. Touching a patient in an area not within the proper scope of the procedure could be considered a tortious assault or battery. The doctor also said she was going to certify that she found hemorrhoids even though she found none; indeed, the post-operative note said hemorrhoids were found.
The medical malpractice lawsuit included claims for intentional and negligent infliction of emotional distress, defamation, medical malpractice and other statutory violations. These are state tort claims available in all states, including Oregon. Reportedly, the award included $200,000 for punitive damages. When reporters tried to interview the doctor, they found that she didn't work there anymore and had moved to another state.
Source: NBC Washington, "Man Wins $500K After Phone Records Doctors Mocking Him", Kinsey Grant, June 25, 2015