"Anesthesiologist trashes sedated patient — and it ends up costing her"

"These audio clips are excerpts from conversations between a gastroenterologist, an anesthesiologist and a medical assistant during a colonoscopy. This was entered as evidence in a lawsuit filed by the patient for defamation and medical malpractice."

The jury awarded the man $100,000 for defamation — $50,000 each for the comments about the man having syphilis and tuberculosis — and $200,000 for medical malpractice, as well as the $200,000 in punitive damages. Though the remarks by Ingham and Shah perhaps did not leave the operating room in Reston, experts in libel and slander said defamation does not have to be widely published, merely said by one party to another and understood by the second party to be fact, when it is not.

“I’ve never heard of a case like this,” said Lee Berlik, a Reston lawyer who specializes in defamation law. He said comments between doctors typically would be privileged, but the Vienna man claimed his recording showed that there was at least one and as many as three other people in the room during the procedure and that they were discussing matters beyond the scope of the colonoscopy.

“Usually, all [legal] publication requires is publication to someone other than the plaintiff,” Berlik said. “If one of the doctors said to someone else in the room that this guy had syphilis and tuberculosis and that person believed it, that could be a claim. Then it’s up to the jury to decide: Were the statements literal assertions of fact? The jury apparently was just so offended at this unprofessional behavior that they’re going to give the plaintiff a win. That’s what happens in the real world.” 

One of the jurors, Farid Khairzada, said that “there was not much defense, because everything was on tape.” He said that the man’s attorneys asked for $1.75 million and that the $500,000 award was a compromise between one juror who thought the man deserved nothing and at least one who thought he deserved more.

“We finally came to a conclusion,” Khairzada said, “that we have to give him something, just to make sure that this doesn’t happen again.”