Defamation and Medical Malpractice

A 2013 lawsuit in Virginia resulted in a man being awarded about $500,000 for medical malpractice and defamation. The case, which is progressively growing notoriety, was brought to light when the anonymous man discovered that he accidently recorded his entire colonoscopy procedure. Only minutes after taking the anesthesia, the physicians and surgical staff were recorded saying a myriad of offensive things about the patient. From telling other medical personnel in the room he had a rash from syphilis, to telling the unconscious man that he made the doctor want to punch him in the face during pre-op just from hearing him speak, the man was insulted and humiliated throughout the procedure without ever knowing it until after.

The medical team’s argument was that it was “improper recording” without consent. While normally this is a creditable defense, the attorney for the patient disputed this because the medical team had originally granted consent to film, despite the state law saying that is wasn’t needed. The abused man only intended to record the pre-op instructions, such as dietary or movement restrictions, resting, and medication intake, so that he would not forget following the procedure. In addition to prior consent, the patient’s lawyer made the point that the insults were directed solely at the patient, despite him being unconscious. In Virginia, the law on recording is that it’s only illegal if the party is not a part of the conversation; since the staff hurled insults at him, it was argued that consent carried over from their initial conversation. The judge and jury agreed.

If you or someone you know has been a victim of medical malpractice or defamation, contact an attorney at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner by calling (713) 222-7211 or toll free at 713-222-7211.