It was supposed to be a routine procedure recommended for every adult his age, but an accidental setting on the patient’s smartphone produced an unexpected outcome.
A man entered a medical facility in Virginia expecting a colonoscopy. Just before receiving anesthesia, he turned on his smartphone recorder to save the postoperative instructions from the physician. For some reason, the recording process was not stopped, and the patient ended up with a recording of the entire procedure. When he played back the recording, he found more than the usual operating room chatter.
Once the patient was fully sedated, the anesthesiologist said, “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.” There was more. When a medical assistant reported that the patient had been uneasy watching the needle placed in his arm, the specialist added, “Well, why are you looking then, retard?” The assistant then noted a rash on the patient, which prompted the physician to comment that the medical assistant might “get some syphilis on your arm or something,” then adding, “It’s probably tuberculosis in the penis.”
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According to court records, the anesthesiologist then falsified the patient’s medical chart by entering a diagnosis of hemorrhoids, despite the fact that the patient did not have the condition. On the recording she was heard saying, “I’m going to mark ‘hemorrhoids’ even though we don’t see them and probably won’t.”
Attorneys for the medical staff tried arguing that the recording was illegal, but Virginia only requires one party in a conversation to consent to a recording. At trial, the accidental recording was central in persuading a jury to award $100,000 for defamation and another $200,000 for medical malpractice.
A former president of the Academy of Anesthesiology testified at the trial. She warned that the commentary by the anesthesiologist and medical staff were “not only offensive but frankly stupid, because we can never be certain that our patients are asleep and wouldn’t have recall.”
Ann Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
