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RESTON, Va. – A jury awarded a man half-a-million dollars after hearing audio that was recorded during a surgical procedure.
The patient, who was undergoing a colonoscopy, hit record on his smartphone so that he would be able to remember any instructions the doctor gave him after the procedure.
However, he did not expect to capture what was said during the colonoscopy.
“After five minutes of talking to you in pre-op,” the anesthesiologist told the patient during the recording. “I wanted to punch you in the face and man you up a little bit.”
At one point during the procedure, a medical assistant noticed a rash on the man. According to attorneys, that is when the anesthesiologist began joking about it being “syphilis.”
After listening to the recording and hearing the doctors’ commentary, the patient sued the doctors for defamation and medical malpractice.
The doctors’ attorneys argued that the recording was illegal, but Virginia is a one-party consent state, meaning that only one person involved in the conversation needs to agree to the recording.
A jury ordered the anesthesiologist and her practice to pay the man $500,000.
“Usually, all [legal] publication requires is publication to someone other than the plaintiff,” Lee Berlik, a Reston lawyer, told the Washington Post. “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? The jury apparently was just so offended at this unprofessional behavior that they’re going to give the plaintiff a win. That’s what happens in the real world.”