Medicolegal Issues
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Patient−physician recordings and the law
State laws differ regarding when it is legal to record in-person conversations. When everyone in the conversations knows about the recording, it is permissible and can be used in a court of law. In most states it is legal to record when only one party to the conversation has agreed to it, even though others in the conversation are not aware of it (which was the situation in the case discussed here).
In theory, physicians (by contract with patients) might try to limit patients’ rights to record medical services. But that practice would be difficult to implement or enforce in many circumstances. The reality is that audio and video recording devices are so ubiquitous that it is not sensible to avoid all recording of patient contact.
Physicians also might consider the potential such recordings have in some circumstances to improve communication with patients. Permitting the patient to record the patient−physician exchange, for instance, allows the patient the ability to review the advice after having left the office. This could be beneficial from a patient care perspective.
Defamation—award of damages
At its core, defamation is publishing (that is, telling someone other than the plaintiff) something untrue that may be harmful to another person. Generally the harm is reputational and the plaintiff may be affected by loss of business, mental suffering, or loss of esteem in the community.9
Defamation claims are not typical in health care cases. However, these claims are not rare: instances of health care professionals defaming other health care professionals, patients giving negative “reviews,” or health care professionals releasing false information to employers certainly do exist.
In this case, in addition to saying that the patient had syphilis and tuberculosis (both untrue), the physicians said he was a “wimp.” One interesting concept of defamation law that has developed over the centuries is “negligence per se.” This means a falsehood has been published about someone and the falsehood is likely to cause serious reputational harm. Claims that someone has a contagious disease traditionally have been considered negligence per se. Syphilis and tuberculosis fall in that category. On the other hand, saying someone needs to “man up” is usually a matter of opinion, so defamation for such comments is unlikely without special circumstances.
From the anesthesiologist’s perspective, the question is whether anyone who heard the publication really believed that the patient had either of the diseases. A joke that nobody believes to be based on fact generally is not defamatory because it has not harmed the plaintiff.10 It is apparent that the jury felt the patient had been defamed, however, given the $100,000 award for defamation.
In the United States there is special sensitivity to defamation awards because they may implicate the First Amendment’s protection of free speech. That being the case, this award may be particularly open to review by the judge and appellate courts.
Emotional distress—no award of damages
There are 2 kinds of “emotional distress” claimed in this case:
- intentional infliction
- negligent infliction.
Intentional infliction usually requires outrageous conduct by the defendant who acts intentionally or recklessly to inflict severe mental pain on the plaintiff.11 In this case, the element of “intentional” or “reckless” is interesting. While the conduct was outrageous, it is doubtful that there was any way the anesthesiologist could have imagined that these outrageous statements would have been transmitted to the patient/plaintiff.
As for negligent infliction of emotional distress, most states have been wary of opening a Pandora’s Box of litigation. Therefore, they generally require significant physical manifestations of great stress to allow recovery.12 It appears that the jury did not find the elements of either intentional or negligent infliction of emotional distress in this case.
As a side-note, this kind of emotional distress is viewed by the law as different from emotional distress that is incidental to a physical injury (pain and suffering). All states recognize that form of emotional distress.
Privacy—no award of damages
The privacy of medical records has, of course, become a major concern in the last few years. Both federal and state law provides significant penalties for the unauthorized release of medical information. However, in this case, it does not appear that medical information was improp- erly revealed.13
The patient’s complaint suggested that the anesthesiologist’s discussion during the colonoscopy of the medication for the penile rash was unnecessary for health care purposes.1 Therefore, it claims, the discussion violated the state health records privacy law. At the same time there was no indication in the public reports that this caused any harm to the patient.
