Prank in surgery puts facility, staff on wrong end of lawsuit

Patient says he woke with nails painted, words written on him

A Texas hospital, its parent company, two surgical nurses, a nurse anesthetist, and a surgical tech are facing a lawsuit charging them with assault and intentional infliction of emotional distress after what the plaintiff says was a prank played on him while he was anesthetized for surgery. An appeals court recently ruled that the defendants should stand trial.

The lawsuit was filed by Chauncey Drewery, previously a surgical tech at Metroplex Adventist Hospital in Killeen, TX, who underwent a tonsillectomy at the same facility where he worked. In his lawsuit, he claims that upon emerging from general anesthesia, he discovered that two RN co-workers had painted his fingernails and toenails pink.

In addition, Drewery claims, they also wrote each of their names and "was here" on the soles of his feet. The co-workers also taped up Drewery's thumb to mock his private and embarrassing habit of sucking it, he says. The lawsuit alleges that the two nurses continued to harass Drewery after he returned to work by falsely telling people that he was gay. The harassment was so significant that Drewery resigned from his job, the lawsuit claims.

Drewery sued the nurses for assault and intentional infliction of emotional distress, and he also accused a surgical tech and anesthesia provider of aiding and abetting the prank by failing to intervene. The lawsuit also names the hospital and its parent company, Adventist Health System, and claims they did not act when Drewery reported the prank and other harassment, thereby fostering a hostile work environment.

Soon after the lawsuit was filed in April 2009, the defendants requested that the case be dismissed because it lacked the medical expert reports necessary for healthcare liability claims to proceed. A county trial court granted this request, but a state appeals court recently reversed that decision and sent the case back to the trial court. (See the state appeals court ruling at http://bit.ly/nLpW1A. See the story, below, for excerpts from the ruling.)

The appeals court ruled that the case is not a healthcare liability claim and therefore does not require the filing of experts' reports. The court noted that the alleged prank was "extreme and outrageous, in that all Defendants were in positions that required them to provide medical care and treatment" to a patient who "was under general anesthesia and muscular paralysis and was physically incapable of defending himself against this assault committed by the very professionals charged with protecting him from these horrific actions."

A spokesman for Metroplex Adventist Hospital, Desirae Franco, says hospital leaders declined a request for comment from AHC Media, the parent company of Same-Day Surgery. An attorney for Drewery, the plaintiff, did not return calls to AHC Media seeking comment.

Legal observers say the defendants are in deep trouble. They say the abuse alleged in this case isn't just a wild aberration: This kind of prank could be happening in your own surgery suites.

Surgery pranks not uncommon

The case speaks to two legal issues: hospital risk management and employment law, says Alex J. Keoskey, JD, a partner specializing in healthcare litigation with the law firm of DeCotiis, FitzPatrick & Cole in Teaneck, NJ.

"That sounds like a serious breakdown in discipline at several levels," Keoskey says. "First, there would be a real lack of leadership in their particular department's supervisory staff, failure of education and enforcement with regard to the bylaws and/or department rules. I do know that those types of pranks are not uncommon."

Keoskey suggests that, if the allegations are true, the hospital must have a serious problem with its culture. Even if the surgery prank was not intended as harassment, but rather just harmless horseplay among colleagues, supervisors and hospital leaders should have instilled a culture in which that prank would not be tolerated, he says. (See the story on p. 104 for more on how common such pranks are.) Sources contacted by Same-Day Surgery indicated that this type of behavior is addressed in medical staff bylaws, employee handbooks, and/or codes of ethical conduct.

The case is "disturbing" and suggests a failure of policies and procedures at every level, says Susan H. Patton, JD, counsel with the law firm of Butzel Long in Ann Arbor, MI. "If these allegations are true, this is a failure of the hospital to create a culture of compliance and to address bullying and other destructive behavior," Patton says. "There is a lot to dislike about this case."

The lawsuit could result in significant liability, Keoskey says. In another work environment, a jury might not be sympathetic to what seems a harmless practical joke among co-workers. But a jury is likely to see the situation differently when a patient is anesthetized, helpless, and dependent on medical professionals for not only his safety but his dignity, he says. (See the story, below, for more on possible disciplinary action by the Texas nursing board.)

The appeals court determined that the alleged surgery prank was assault and battery, Patton says.

An employee who stands by while others perform a prank in surgery might be in just as much trouble, Patton says. Such staff members might have owed the patient a duty of due care and it might be alleged that they breached this duty by failing to act to stop the actions of the others.

Charges of negligence for the omission of an act required by law are common against healthcare providers, Patton notes. Negligence might be defined as harm done as a result of neglecting duties, procedures, precautions, or otherwise failing to act as a reasonable person would have acted in a similar situation, she says. Examples of negligent failure to exercise due care might include failing to follow standard protocols and procedures, such as not stopping or reporting inappropriate conduct or contact; failing to prevent injury to patients or other employees; or failing to maintain patient privacy and confidentiality.

The hospital's actions, or lack of action, after the surgery prank and claims of harassment might be what ultimately leads to the greatest liability, suggests Brian Inamine, JD, a shareholder with the law firm of LeClairRyan in Los Angeles. The surgery prank was "dumb" but did not leave lasting damage to the plaintiff, Inamine says, whereas the ongoing harassment and management's alleged failure to intervene could result in a significant payout. "Any one of the claims he makes in the lawsuit could be the basis for a hostile work environment claim," he says. "There can be actionable workplace harassment here, no doubt. I see plenty of actionable claims here."

All of the attorneys consulted by AHC Media expressed wonder that the hospital had not yet settled the case. The hospital might have attempted to settle, of course, but Patton says it should have been willing to pay even a large sum to make the case go away.

"It strikes me as amazing that the hospital let this go as far as it did without settling," Patton says. "I would think they would want to just get it off the radar because it is such a horrible fact situation and such a developed fact situation. I can't imagine the damage this is doing to them in terms of public perception among people who have a choice about where to have surgery."

Sources

For more information, contact:

  • Brian Inamine, JD, Shareholder, LeClairRyan, Los Angeles. Telephone: (213) 337-3232. E-mail: brian.inamine@leclairryan.com. ;
  • Alex J. Keoskey, JD, Partner, DeCotiis, FitzPatrick & Cole, Teaneck, NJ. Telephone: (201) 347-2107. E-mail: akeoskey@decotiislaw.com.
  • Susan H. Patton, JD, Counsel, Butzel Long, Ann Arbor, MI. Telephone: (734) 213-3432. E-mail: patton@butzel.com.

Court: Prank 'extreme, outrageous, horrific'

The state appeals court hearing the lawsuit brought by Chauncey Drewery against his former employer and former coworkers was appalled by the alleged prank played on him during surgery. These are some excerpts from the ruling by the Texas Court of Appeals, Third District, at Austin, TX:

"In addition to the assault claim, Drewery alleged causes of action against [two nurses] for intentional infliction of emotional distress, claiming that the incident and its aftermath created a hostile work environment that caused him severe emotional distress. He asserted that when he returned to work after the surgery, the individual defendants continued to tease him and make jokes about his sexuality, telling other hospital employees that he is gay, even though he is not, and that they had painted him to look 'like a little girl.'"

"Regarding the taping of his thumb, Drewery argued that the significance of this act was to call attention to his 'very private, but embarrassing habit' of sucking his thumb, which [one nurse] was aware of and had exploited in an attempt to humiliate him."

"He alleged that he experienced nausea and loss of sleep and appetite as a result of feeling that he had been violated by his coworkers and from not knowing what else might have been done to him while he was under anesthesia."

"According to his pleadings, Drewery suffered further emotional distress after administrative personnel at the Hospital ignored his complaints regarding the assault, failed to acknowledge any wrongdoing, and failed to punish the perpetrators."

"Drewery brought the same causes of action for assault and intentional infliction of emotional distress against … a surgical technician, and … a nurse anesthetist, claiming that both of them had been present in the operating room before and during his surgery, yet neither of them had intervened to stop the assault; in fact, Drewery alleged, [they] had aided and encouraged [the nurses] by joking and laughing. Drewery also brought these claims against the Hospital under the doctrine of respondeat superior, arguing that the individual defendants had been acting in the course and scope of their employment."

"The actions described above, which were directed towards Plaintiff, were intentional. Defendants' conduct involved an extreme degree of risk considering the probability and magnitude of potential harm to Plaintiff and all Defendants proceeded with conscious indifference to the rights, safety and welfare of Plaintiff despite all Defendants' actual, subjective awareness of the risk involved."

"The acts of all the Defendants described above were extreme and outrageous, in that all Defendants were in positions that required them to provide medical care and treatment to Plaintiff. Plaintiff was under general anesthesia and muscular paralysis and was physically incapable of defending himself against this assault committed by the very professionals charged with protecting him from these horrific actions."

"The defendants are mistaken in relying on the sole fact that they were 'acting' as health care providers at the time the alleged assault occurred," which would require expert testimony. "The fact that the actions were taken by a physician or health care provider does not necessarily mean that the suit is about a patient's treatment, lack of treatment, or other departure from accepted standards of health care. Otherwise, every claim based on the conduct of a physician or health care provider in a health-care setting would be subject to the expert-report requirement." (See the state appeals court ruling at http://bit.ly/nLpW1A.)


Attorney: Discipline likely from nurses board

In addition to any monetary payout from the defendants in the surgery prank case involving Metroplex Adventist Hospital in Killeen, TX, the individual defendants also might find their careers in jeopardy, says Alex J. Keoskey, JD, a partner specializing in healthcare litigation with the law firm of DeCotiis, FitzPatrick & Cole in Teaneck, NJ.

"All of these nurses are individually regulated by the Texas Board of Nursing, so they may have violated rules and regulations there that will make them individually susceptible to discipline by that board," he says. "The hospital may have a problem from a regulatory standpoint with the Texas Department of State Health Services."

Keoskey says that if the allegations are true and two staff members stood by and did not interfere with two nurses playing a joke on an anesthetized patient, that inaction signals a serious problem within the hospital. Other staff members, such as those in post-op recovery, must have seen the prank but did not report it either, he says.

"I just can't believe this is an isolated incident at this hospital," he says. "The plaintiff also claims that his reports of harassment and a hostile work environment went unanswered by hospital leadership, and I find that amazing. That is inexcusable. If that person did complain and those complaints were ignored, that is a serious transgression — and I'm talking about any supervisor who heard the complaint and certainly the risk manager."


OR is no place to get casual

Practical jokes are common

Healthcare attorneys tell AHC Media, parent company of Same-Day Surgery, that they are privy to some things that might shock a manager, such as what really happens in the OR.

Surgical pranks and horseplay in surgery are surprisingly common, says Alex J. Keoskey, JD, a partner specializing in healthcare litigation with the law firm of DeCotiis, FitzPatrick & Cole, Teaneck, NJ. He bases that statement on what he has seen from lawsuits in which a too-casual OR atmosphere was revealed during the litigation of malpractice cases.

The pranks, or staff becoming too familiar with one another and acting unprofessionally, are a result of the same stress that can lead to outbursts and abuse by physicians, Keoskey says. "It's not uncommon, and I think most nurses who work in surgery will tell you this. You do see these practical jokes quite a bit," Keoskey says. That statement is supported by comments made by nurses about the case at http://allnurses.com/nursing-news/nail-polish-prank-574481.html.

The manager and other leaders often don't know about the problem because members of surgical teams will straighten up and act appropriately if supervisors are present, he says. Managers should instill a culture in which all staff understand that, though camaraderie is encouraged, there must be a bright line beyond which all behavior is strictly professional.

"Lawyers joke with each other all the time, but we don't do it in the courtroom because we have great reverence for that particular place and we know that it demeans the entire profession when we joke around in an area that is at the core of what we do," Keoskey says. "The surgical suite should be the same way. Joke around in the locker room or the break room all you want, but that has to stop when you walk in the OR and you're responsible for a human being lying on the table."

Managers should establish a zero tolerance policy for practical jokes in the workplace, with a special emphasis on the OR and any other patient care, Keoskey says. "Rules like that don't just need to be on paper, they need to be enforced," he says. "People need to sign off on them and agree that they will not only not engage in this type of behavior but will report others who do."