Surgeon sued for talking on cell phone during an operation

Surgeon sued for talking on cell phone during an operation
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Skeptical Scalpel

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last six years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 2,500,000 page views, and he has over 17,000 followers on Twitter.

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Skeptical Scalpel (click to view)

Skeptical Scalpel

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last six years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 2,500,000 page views, and he has over 17,000 followers on Twitter.

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A surgeon took a Spanish language proficiency test while performing varicose vein surgery on a 70-year-old woman. The doctor said he had to take the test during the procedure because no other time was available. Since the case was being done under local anesthesia, she could hear what he was saying. She said she speaks Spanish, heard him talking about diabetes and blurred vision, and was fearful for her safety because she thought the doctor was talking about his own medical problems.

Nothing is more distracting than a cell phone in the operating room. In a perfect world, we would leave our cell phones in our lockers and sign out to another surgeon to cover us while we are operating. Unfortunately, the world is not perfect. Many times when I was on call, I was the only general surgeon covering two hospitals. I had to have my cell phone in the operating room to field any calls that came in.

However, I cannot condone the actions of the surgeon in this case. Taking a language proficiency test while operating is inappropriate. According to a report, he admitted this as did his group’s medical director and risk management administrator.

A malpractice suit has been filed alleging the patient suffered emotional distress which is still ongoing. The outcome of the procedure is not an issue.

I have several thoughts.

If the test was offered at only one time, he should have scheduled the operation for another time.

If the patient was fluent in Spanish, she must have realized the surgeon was not talking about his own medical problems.

A successful malpractice suit is built on four elements. The physician must have a duty to care for the patient, which was true here. Negligence must have occurred. The negligence must have caused harm. Damages must be significant. It is possible that the patient suffered real emotional distress during and after the case, but she may have trouble proving it.

Juries can be unpredictable. In this case, I’m not sure whether a jury would have reservations about deciding for a plaintiff who was undergoing non-life-threatening surgery that otherwise turned out well, or would a jury want to punish the surgeon for what they might feel was egregious behavior.

This story went viral, and all the negative publicity may have been prevented if the patient had been offered a reasonable sum of money before suing.

Finally, I can’t resist sharing some excerpts from the summons filed by the plaintiff’s attorney. For those of you who have never been sued, comments like these are routine [but usually not quite so over the top].

Dr. X’s conduct … was so extreme in degree as to go beyond all possible bounds of decency.

Dr. X’s conduct … was atrocious.

Dr. X’s conduct … was utterly intolerable in a civilized community.

Dr. X’s conduct as stated above were [sic] intentional and/or done with absolute reckless disregard of its consequences. 

Due to the actions of Dr. X, Ms. Doe was terrorized and has suffered and will continue to suffer severe emotional distress. 

After reading all of that, I suffered severe emotional distress.

5 Comments

    • Sadly, many insurers would rather pay out a settlement than litigate, even when there is no basis for a suit. Juries are unpredictable, and in this case jurors could react with a sense of indignation to convict the surgeon, even if, legally, there was no malpractice. I would never accuse a patient of filing a frivolous suit, but a lot of attorneys know very well that a settlement is easy to coerce out of an insurance company…

      Reply
      • I’m sorry to say you are correct.

        Reply
  1. The surgeon should have re-schedule one of the two procedures, but patient has no moral standing bringing up this lawsuit. “Permanent and severe emotional distress”… give me a break. She just found a way to get some money without working for it. Surgeon should be reprimanded for not providing 100% of his focus on the patient, but that’s it.

    Reply
    • I agree. The suit has no merit.

      Reply

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