Executive Summary

A highly publicized lawsuit involving a sedated patient whose smartphone recorded a doctor’s insulting comments resulted in a recent $500,000 jury verdict. The following ethical concerns were raised regarding physicians’ inappropriate behavior:

• Medical students and residents often observe providers speaking disrespectfully about patients.

• Patients may worry that their providers engage in similar behavior.

• Some individuals avoid seeking care due to fears of being disrespected.


 

A Virginia jury recently awarded $500,000 for defamation, medical malpractice, and punitive damages to a man whose anesthesiologist made insulting, inappropriate comments while the patient was sedated during a colonoscopy. The patient intended to record his doctor’s instructions on his smartphone so he could listen to them later, and realized afterward that he had recorded the entire procedure.

“One significant and disturbing implication of this case is that the culture of medical practice still tolerates such behavior,” says Ben A. Rich, JD, PhD, emeritus professor of bioethics at University of California-Davis School of Medicine.

The gastroenterologist and medical assistant didn’t discourage the anesthesiologist from her comments or actions, which included falsely documenting that the man had hemorrhoids. “Had the physician’s statements not been recorded and subsequently heard by the patient, nothing would likely have come of the incident,” says Rich.

Some ethicists view the highly publicized incident as a “wake-up call” for the medical community. “This was discovered accidentally. What kind of behavior is occurring that no one knows about that goes unspoken and unreported?” asks David A. Fleming, MD, MA, FACP, director of the Center for Health Ethics at University of Missouri, Columbia.

Autumn Fiester, PhD, director of the Penn Clinical Ethics Mediation Program at University of Pennsylvania in Philadelphia, says she is “both surprised and pleased that this incident has gotten the legal response and publicity that it has. What happened is ethically offensive, yet difficult to name.”

Fiester worries that incidents like this one are not uncommon. “We frequently hear anecdotes from medical students and residents who are uncomfortable about the way unconscious patients are being discussed, or even ridiculed,” she says.

Others affected by conduct

The jury awarded the patient $200,000 in punitive damages. “This is a powerful message that false or derogatory statements about a patient made in the context of a professional relationship can be deemed a material departure from the prevailing standard of acceptable care, thus giving rise to liability,” warns Rich.

Because mockery or derision of patients usually takes place when patients are unconscious, the offense is rarely witnessed by the actual patients. This leads some clinicians to view it as harmless banter. “But these kinds of scathing insults contribute to the culture of treating patients as mere objects rather than as persons,” says Fiester.

When this type of behavior is exhibited in the presence of medical students and residents, “it is particularly pernicious, because it carries the implicit message that such behavior is acceptable,” says Rich.

Patients undergoing anesthesia put themselves in physicians’ hands in good faith that they will be treated with dignity and respect, says Fiester. “The violation of this trust is a spectacular breach of the professional expectations all patients have of their treating clinician,” she says.

After hearing about the highly publicized incident, patients may worry that their providers are engaging in similar behavior. “Patients may have legitimate cause for concern that they, too, could be a victim of negative, false, or malicious comments by those to whom they have entrusted their medical care,” says Rich.

Fleming says that if patients mention the Virginia incident, physicians should take the opportunity to reassure patients they’ll be treated with respect. “If it comes up, it should certainly be addressed,” he says. “It is not something to make light of.”

Physicians should be sensitive to the fact that many people fear being judged negatively, says Rosemarie Tong, PhD, emeritus professor of healthcare ethics at the University of North Carolina at Charlotte. “It is my belief that many patients don’t want to see a doctor simply because they are embarrassed by their body,” she says.

For some individuals, the fear of being shown disrespect can result in avoidance of needed care. “This incident may impact patients’ trust in the healthcare system,” says Fleming. “They may delay getting care, or not get care at all, at a time when they need it.”

Dennis M. Sullivan, MD, director of Cedarville (OH) University’s Center for Bioethics, says that electronic medical records, increased workload, and a decline in professionalism are all contributing to the dehumanization of medicine. “Today’s doctors are overwhelmed with the business of healthcare. It should be no surprise that many no longer see their work as a professional calling,” he says. “Human dignity has been lost in the process, and more lawsuits will surely result.”

During Sullivan’s own surgical residency training in the 1980s, senior residents would often make disparaging comments about a patient’s obesity, ethnicity, or economic status, in front of junior residents, medical students, and nurses.

“Most doctors resisted this pressure, and still treated their patients with respect,” says Sullivan. “Today, it seems that human dignity is more of a platitude than a professional practice.”

In the Virginia case, the healthcare providers involved not only failed to recognize the human dignity of the patient, but also failed to live up to their own human dignity, according to Matthew R. Kenney, PhD, vice president of mission and ethics at Saint Francis Hospital and Medical Center in Hartford, CT.

“Human dignity requires that we act with justice, respect, and integrity even when we think no one is watching or listening,” says Kenney. “A secondary ethical issue seems to be a sort of ‘bystander syndrome.’”

In the Virginia incident, several other healthcare providers either stood by and said nothing while the patient was being ridiculed, or actively participated. “I can’t help but think that if one person in that operating suite had stood up for the patient or stated their discomfort with the situation, the physician in question may have stopped,” says Kenney. “Silence, in this case, is a form of consent.”

Patient/physician trust harmed

Physicians and other healthcare professionals need to be persons of integrity and conscientiousness, says Tong. “In return for the status, prestigious, power, and financial rewards society gives them, they have an obligation to treat their patients respectfully and carefully, always mindful of how vulnerable patients are,” she says.

Healthcare providers have an ethical obligation to act professionally in the presence of patients, and also when they are not in their presence, says Fleming. “We have a very high bar that we have to meet relates that professional integrity,” he adds. “We don’t have the luxury of any slippage.”

Fleming tells medical students that when they enter the profession of medicine, “You take an oath and you are different now. You don’t have the luxury of acting out unprofessionally in any venue.”

Tong says a good rule of thumb is for healthcare professionals not to say anything about their patients that they would be ashamed to go “viral.” “Trust is essential for the physician-patient relationship,” she adds. “Hospital ethics committees should take the time to educate everyone at their institutions about inappropriate conversations about patients.”

Tong says it would be regretful if everyone started to install cameras in hospital rooms to monitor the healthcare professional-patient relationship. “Much preferable is having healthcare professionals take a class on appropriate language to use about patients,” she says.

Fleming suggests having a series of discussions with faculty about the Virginia case, or bring the incident up during a staff meeting. “Ask people, ‘How would we keep this from happening here?’” he says. “Encourage thoughtful responses and dialogue.”

Medical students will likely find it difficult to report a concern involving a professor or resident who is evaluating them. “You have to find a safe mechanism where they can report events that occur, immediately if necessary,” Fleming says.

University of Missouri’s Office of Civility allows anyone — provider or patient — to report observed inappropriate behavior. “We have the means by which we can intervene,” says Fleming. Speaking contemptuously about a sedated patient rises to the level of a patient safety concern, he adds. “I would view that behavior as something that is potentially very harmful to the patient. Those attitudes may skew the performance of other healthcare providers caring for the patient,” he says.

If an incident is reported, hospital leaders meet with the involved parties, and sometimes notify the chair or supervisor in the department.

“We’ve had situations where I have actually fired people due to inappropriate behavior, and it oftentimes comes to that,” says Fleming. The institution surveys medical students after graduation every year on professional behavior. “It’s amazing what comes out,” he says. “We can’t really track the incidents because they don’t name names, even though it’s anonymous for them. So it’s hard to intervene.”

Kenney says the case spotlights the need for all providers to be aware of comments made about patients, even in jest. “It is unfortunate that this case had to occur. However, maybe some good can come out of it,” he says. He says bioethicists can address the issue in the following ways:

• Making the Virginia case the subject of ethics grand rounds.

• Looking at hospital policies on this type of behavior if they exist, or crafting policies if none exist at present.

However, policies alone won’t resolve the issue. “They may serve as a deterrent if they are known, and may establish punitive actions should they be violated,” says Kenney. “But real change will only occur through education, and the cultivation of greater empathy.”