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Anesthesiologist's mocking of sedated patient proves to be a $500,000 mistake

Thinking he would be too groggy to recall a doctor's post-op instructions after a routine colonoscopy, a Virginia man turned on his cellphone to record them. When he replayed the conversation on his way home, however, he heard more than his gastroenterologist's instructions. 

The man had inadvertently recorded his anesthesiologist and doctor disclosing his private health information during the 2013 procedure, as well as openly mocking him and laughing at his fear of needles. 

"Oh, Oscar Mike Gross," said Tiffany Ingham, an anesthesiologist practicing in Virginia, once the patient was sedated. The phrase is a substitute for "Oh, my God." 

Ingham also was recorded mocking the amount of drugs required to anesthetize him, calling him a "wimp" and a "retard." She also spoke about misleading the patient once he was awake, and joked about how the man needed 15 minutes to change clothes.

"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," Ingham said on the recording. 

She laughed about a rash on the man's penis, telling a medical assistant to be careful not to rub up against it lest she get "some syphillis" on her arm "or something." 

"That would be bad. That would be real bad," replied Solomon Shah, 48, the gastroenterologist performing the procedure.

Ingham continued, "It's probably tuberculosis, so you'll be all right."

The man did not have tuberculosis or syphillis. 

Toward the end of the colonoscopy, Ingham asked who would speak with the man afterward. "Round and round we go. Wheel of annoying patients we go. Where it'll land, nobody knows."

The man, who wished to remain anonymous because of the sensitivity of the case, eventually saw a second gastroenterologist and another doctor who prescribed anti-anxiety medication.

He also saw a lawyer. He sued for malpractice and defamation, and on Thursday, a Fairfax County jury awarded him $500,000.

Mikhael Charnoff, the patient's attorney, said by email that the award included $200,000 for medical malpractice, $50,000 for defamation for the syphilis statement, $50,000 for defamation for the tuberculosis statement, and $200,000 in punitive damages. The plaintiff had sought more than $5 million in damages. 

"Plaintiff was verbally brutalized and defamed by the very doctors to whom he entrusted his life while under anesthesia," Charnoff wrote in the lawsuit. The complaint said his client had been distressed as a result of the defendant's conduct, and had suffered embarrassment, loss of sleep and mental anguish.

Neither Ingham nor her attorney, D. Lee Rutland, could be reached for comment by the Los Angeles Times. 

Aisthesis, the anesthesia practice that Ingham worked for in Bethesda, Md., said in a statement that she was no longer with the practice.

“We apologize to this patient and regret the distress and suffering that this most unfortunate incident caused," the Aisthesis statement said. "Once we learned of this incident we assured that every anesthesia staff member reviewed and reiterated their pledge to abide by our professional organization’s code of ethics.”

Alan Block, the attorney representing Shah, who was dismissed as a defendant in the case, did not respond to requests for comment.

Ingham's attorney had argued that the audio recording was inadmissible as evidence because the man, known as D.B. in court filings, was not a "party" to communications during the medical procedure.

Under Virginia law, at least one party must consent to the use of a recorder. 

The judge denied the motion and said that D.B. had the right to use all relevant evidence, and the audio recording was highly relevant.

Typically, to win a defamation case, claims must be understood to be verifiable fact. As medical professionals, the listeners knew the comments were made in jest.

But Robert O'Neil, former director of the Thomas Jefferson Center for the Protection of Free Expression, agreed with the jury.

"I believe a higher and unusual expectation of patient privacy should govern such a case, thus making the charged conduct the more egregious," O'Neil said in an email to The Times. "Moreover, the aggravating factors seem so extreme and offensive that any doubts were properly resolved by the Fairfax jury." 

Tom Roberts, a lawyer who specializes in defamation law in Richmond, Va., said the case was novel.

"There aren´t many cases like it," he told The Times in a telephone interview. "I think the jurors were properly outraged that the person who is supposed to be looking out for you is talking so ill of you while you're in their care."

Copyright © 2016, Los Angeles Times

UPDATE

9:19 a.m.: This story was updated with a statement from Aisthesis.

This story was orginally published at 3 a.m.

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