A man sued his doctors and his doctors' medical staff at a Reston, Virginia surgical suite after hearing a recorded conversation mocking and defaming him while he was unconscious during a routine colonoscopy back in April 2013.
After a three-day trial, a Fairfax County jury ordered anesthesiologist Tiffany M. Ingham and her practice to pay the man a total of $500,000 for defamation and medical malpractice. The jury concluded that $100,000 be paid for defamation: $50,000 each for the comments about the man having syphilis and tuberculosis, $200,000 for medical malpractice, and $200,000 in punitive damages.
The suit states that because the man was going to be fully anesthetized, he turned on his cellphone's audio recorder before the procedure to capture the doctor's post-operation instructions. He later found that he had recorded the entire examination and how the surgical team insulted and ridiculed him as soon as he fell asleep. The man's phone, which was in his pants, was placed under the operating table, thus recording the entire operation.
An excerpt of the recording revealed that Ingham stated derogatory comments.
"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," Ingham was recorded to have said.
Ingham was also heard advising a medical assistant, who commented on the man's rash, to avoid it or she might get "some syphilis on your arm or something. It's probably tuberculosis in the penis, so you'll be all right."
To add further insult, another doctor, Solomon Shah, was heard in the recording saying: "As long as it's not Ebola, you're okay." Shah was dismissed from the case.
In the recording, the medical team also discussed how they would avoid speaking to the man after surgery by lying to the man or faking a patient call. Ingham also said: "I'm going to mark 'hemorrhoids' even though we don't see them and probably won't," as part of the diagnosis on the man's chart.
Ingham later did write the false diagnosis, which is lawfully deemed falsification of medical records.
To maintain his anonymity, the complainant opted to be identified as "D.B." according to his lawyers Mikhael Charnoff and Scott Perry. The man claimed that he was "verbally brutalized" and suffered anxiety, embarrassment and loss of sleep for several months, as stated in his appeal.
The attorneys representing the doctors and anesthesiologist contended the validity of the recording and stated that it was illegal, but the man's attorneys noted that Virginia is a "one-party consent" state; only one person needed to agree to the recording.
Regarding the ruling, one of the jurors, Farid Khairzada said, "We finally came to a conclusion that we have to give him something, just to make sure that this doesn't happen again."
There are instances wherein patients may not be fully unconscious during an operation or procedure due to a high tolerance or resistance to the drug used or a mistake in dosing by an anesthesiologist, but as Dr. J.P. Abenstein, president of the American Society of Anesthesiologists (ASA), said: "It's very uncommon, but it's not unheard of ... Over the years, there have been plenty of reports of patients being awake and remembering things during surgery, but to be perfectly frank, whether the patient remembers it or not, doesn't excuse this behavior."
Ingham and Shah's lawyers did not discuss whether their clients would face any disciplinary action from the Virginia Board of Medicine.
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