Connecticut is what is known as a two-party consent state. This means that telephone calls or conversations may only be recorded if both parties consent. Virginia is a one-party consent state, and that distinction led to a six-figure judgement for a man who was mocked relentlessly during a colonoscopy in April 2013. The stream of insults was captured on a cellphone that the man had inadvertently left recording, and a jury felt that what they heard was no laughing matter as they ordered an anesthesiologist to pay $500,000 after a three day trial.
The man heard the incendiary recording as he drove home, and he subsequently filed a lawsuit seeking damages for defamation and medical malpractice. His $500,000 award is made up of $200,000 for medical malpractice, $200,000 in punitive damages and awards of $50,000 each for two particularly outrageous comments. The medical malpractice award stems from a false notation made on the man’s chart that was intended to cause embarrassment.
Attorneys representing the anesthesiologist attempted to have the inflammatory recording ruled inadmissible, but Virginia law was not on their side. The man is said to have accidentally left the phone on after recording post-operative care instructions prior to being taken into surgery. Reports indicate that the 42-year-old woman has since relocated to Florida.
The recording in this case may have made things straightforward for the jury, but many medical malpractice plaintiffs do not have such compelling evidence at their disposal. Doctors and hospitals do not always admit to their mistakes, and establishing that an error caused injury, loss or damage is sometimes complex and difficult. An attorney may be familiar with these challenges and could help a victim file a lawsuit.
Source: USA Today, “Anesthesiologist mocked sedated patient, pays big,” Kate Seamons, June 25, 2015