After a three-day trial, a Fairfax County, VA, jury ordered an anesthesiologist and her practice to pay a patient $500,000 for disparaging remarks made during surgery and a false diagnosis on his chart. The man might never have known about the offenses if he had not accidentally recorded the encounter on his smartphone.

The comments were made by anesthesiologist Tiffany M. Ingham, MD, an employee of the Aisthesis anesthesia practice in Bethesda, MD, which the jury ruled should pay $50,000 of the $200,000 in punitive damages it awarded. Court records identify the plaintiff only as D.B., but they tell a story that illustrates how smartphone recordings can expose healthcare providers to significant liability.

D.B. was preparing for a colonoscopy in a Reston, VA, surgical center when he started a recording on his smartphone so he could capture the physician’s instructions to him. His phone was put in his personal belongings in a bag underneath the surgical table, still recording throughout the entire procedure, court records indicate.

When he reviewed the recording, he was shocked to hear the surgical team insulting him, mocking him, and falsifying a diagnosis. These are some of the comments on the recording:

• “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,” the anesthesiologist said.
• A medical assistant noted the man had a rash, and the anesthesiologist warned her not to touch it. She cautioned the assistant that she might get “some syphilis on your arm or something.”

She added, “It’s probably tuberculosis in the penis, so you’ll be all right.” Others in the room laughed at the remark. The gastroenterologist said, “As long as it’s not Ebola, you’ll be fine.” The anesthesiologist joked “It’s penis Ebola,” which prompted more laughter.

• The assistant recounted how the man said he always passed out when watching a needle placed in his arm. The anesthesiologist said, “Well, why are you looking then, retard?”
• The gastroenterologist told the medical assistant that she should speak to the patient after surgery and lie to the patient about the doctor having been there.
• “Just tell him Dr. Shah said everything, and you just don’t remember it,” he said. The anesthesiologist then suggested that the doctor have a “fake page” go off as an excuse not to talk to the patient. She said she has used fake pages before.
• Again debating who would have to talk to the patient after the procedure, the anesthesiologist said, “Round and round we go, wheel of annoying patients we go. Where it lands nobody knows.”
• The anesthesiologist said, “I’m going to mark hemorrhoids even though we don’t see them and probably won’t. I’m just going to take a shot in the dark.” (The audio recording is available online at http://tinyurl.com/og37fez.)