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

Patient says he woke with his 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 co-workers Barbara Wiedebusch, RN, and Kristien Williams, RN, had painted his fingernails and toenails pink.

In addition, Drewery claims, they also wrote "Barb was here" and "Kris 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 Wiedebusch and Williams for assault and intentional infliction of emotional distress, and he also accused surgical tech Betty Thorp, RN, and anesthesia provider Warren Voegele, CRNA, 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. )

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 Healthcare Risk Management's request for comment. The attorney for Drewery, the plaintiff, did not return calls seeking comment.

Legal observers say the defendants are in deep trouble. And disturbingly, they say, the abuse alleged in this case isn't just a wild aberration: This kind of prank could be happening in your own hospital's 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.

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.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 Healthcare Risk Management 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.