Tort Law

Jury awards patient $500K due to doctor's defamatory comments while he was sedated for colonoscopy

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A Virginia jury last week awarded an unidentified patient $500,000, including $200,000 in punitive damages, because of defamatory comments made by his anesthesiologist while he was sedated for a colonoscopy.

Intending to capture his doctor’s post-procedure instructions, the patient, referred to as D.B., had left his smartphone in record mode during the colonoscopy, reports the Washington Post (reg. req.). However, it was in his trousers, which were placed under the patient during the procedure, resulting in the inadvertent recording, court records explain.

When he pressed play on his way home from the Reston operating room the patient was stunned to hear Dr. Tiffany Ingham mocking and disparaging him. The patient also sued a gastroenterologist, Soloman Shah, who was present for the procedure but did not directly participate in most of the commentary by Ingham. That portion of the Fairfax County case was dismissed at the beginning of the trial.

Among other comments, referring to a rash on the patient’s penis, Ingham incorrectly suggested that he had syphilis and tuberculosis, the Post recounts. (The jury awarded $50,000 in compensatory damages for defamation for the doctor’s remarks about each of these diseases, and another $200,000 for overall medical malpractice.) Ingham also allegedly said she was going to note in the man’s chart that he had hemorrhoids, although he didn’t.

“And really, 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,” she told the unconscious patient. The comment followed earlier discussion about whether he was gay, the suit says.

Attorney Lee Berlik, who apparently is not involved in the case, told the newspaper that a conversation between doctors about a patient’s medical condition would ordinarily be privileged. However, D.B. said in his suit that the comments by his physicians were unnecessary to his colonoscopy.

The presence of others in the room during a conversation between doctors allows adequate publication to establish a potential defamation claim, Berlik explained.

“If one of the doctors said to someone else in the room that this guy had syphilis and tuberculosis and that person believed it, that could be a claim. Then it’s up to the jury to decide: Were the statements literal assertions of fact?”

However, it may well be that the jury “was just so offended at this unprofessional behavior that they’re going to give the plaintiff a win,” Berlik said. “That’s what happens in the real world.”

Ingham, who has moved to Florida, could not be reached for comment and her lawyer did not respond to the Post’s request for comment.

At trial, the defense unsuccessfully sought to suppress the smartphone audio (Virginia is a one-party consent state) and argued the patient had suffered no significant damage from comments made to a limited medical group, while he was unconscious.

Courthouse News also has a story.

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