Putting the Rose to Bed

Okay, as Denialism’s lawyer, let me get to the issue of the rose tattoo.

A medical procedure is a battery. Patients consent to it, thus allowing the doctor to engage in even invasive touching without liability for the battery. The scope of consent is key, however. Many individuals have a rough sense of consent; they think that if consent is given to one thing, anything goes. But, the law takes a much more nuanced approach to consent. Thus, a patient does not consent to all forms of touching, just ones that are consistent with the procedure authorized.

Was applying a rose tattoo within the scope of consent? Many people get off track by focusing on the temporary nature of the tattoo, but why should that fact matter? The key here is whether the touching itself is authorized. Whether the touching caused a permanent mark goes to damages, not to the consent issue.

It is clear that applying the tattoo, temporary or permanent, is a battery. And a doctor engaged in such pranks can end up paying through the nose for it. Take the facts discussed in Woo v. Fireman’s, where Dr. Woo (real name) applied temporary teeth to his patient (who was also an employee) while under sedation. The teeth were boar tusks, and thus made the patient/employee look very funny. Dr. Woo took pictures, removed the teeth, finished the procedure, and then showed the pictures to the patient/employee. The touching did not physically harm her, and the teeth were temporary. When presented with the pictures, she never came back to work again.

Dr. Woo settled the case for $250,000. That might seem unreasonable, but from the patient’s perspective, there is an incredible amount of anxiety surrounding general anesthesia. Apart from the medical risks, there is the fear that while unconscious, anyone could do anything to you, and you may never learn what happened. Therefore, any deviance in that type of situation can cause years of suffering and anxiety.

The tattoo was a bad idea. They should have known better. And if a patient can recover $250,000 for temporary false teeth, don’t you think a similar or larger award could be appropriate for a below-the-underwear-line application of a temporary tattoo?

Comments

  1. #1 D. C. Sessions
    July 25, 2008

    That might seem unreasonable, but from the patient’s perspective, there is an incredible amount of anxiety surrounding general anesthesia.

    *M*A*S*H* didn’t help, did it?

    Having had orthopaedic surgery [1] this year under general, I’d frankly have loved to have a video of the procedure — but I’m weird. Abstractly, there was no reason it couldn’t have been done under local and the usual medical reasons against general. In practice, I can fully appreciate that the OR team didn’t want me paying attention to the way that they had to handle me like meat on the slab.

    That’s bad enough. Imagining that the surgical team might be making jokes at my expense would be worse, and I’m not a particularly sensitive sort regarding my body.

    IMHO surgical teams should conduct themselves as though there were a video record of the whole procedure available to the patient. If they don’t they run the risk that thanks to some Yahoo there will be, by law. And I agree that that is not a good thing.

    [1] Internal fixation of a distal tibia fracture. I have the coolest X-rays …

  2. #2 PhysioProf
    July 25, 2008

    Thanks for the detailed legal analysis. I was pretty sure that my undestanding of the legal definition of battery is correct, but it is better to hear it from an attorney.

  3. #3 Chris H.
    July 25, 2008

    @PhysioProf, you’re right on–I was mainly responding to commenters who seemed to poopoo this very serious breach of trust. It’s not just a breach of trust; it’s a potentially very expensive breach of trust!

  4. #4 D. C. Sessions
    July 25, 2008

    It’s not just a breach of trust; it’s a potentially very expensive breach of trust!

    In more than one way. Witness how the one bad actor has somehow been projected into lowering all surgeons to slime. Granted, they still have a ways to go before they are held in as much contempt as lawyers …

  5. #5 Chris
    July 25, 2008

    I agree, it is good to get a legal point of view on this.

    As for PProph, of course you were correct to complain about that particular case. You went too far when you tarred all surgeons with that brush. In graduate school, I learned to be prepared,and able, to support everything I said. Where is the support for your blanket indictment of surgeons?

  6. #6 dr j
    July 26, 2008

    Doctors playing practical joked on their patients while under general anesthesia are morons. However, in Canada i don’t think anyone would get 250K for a temporary tatoo or for any prank that didn’t cause permanent damage. maybe 10K. However, the doctor should be punished.

    As far as video taping procedures. I actually think it is a good idea. 1) From a learning perspective. 2) To protect both doctors and patients.

    On the other hand the courts need to understand that doctors are humans and surgeries can have negative outcomes. Doctors should not be punished for negative outcomes unless there was negligence.

  7. #7 MarkH
    July 26, 2008

    We actually do video tape many procedures, frequently laparoscopic but open procedures too. We also have cameras on the walls of every OR at UVA so we actually are on camera all the time.

    I think that it would be hard to do it practically for this purpose though, and would say it might be a bad idea. Surgeons by definition do violence to the body. Like DC mentioned, orthopedic procedures can be especially brutal. I think that would also be kind of a creepy thing. Mostly though, unless you have 5 cameras on every possible angle (which would be difficult in a cramped operating space) you’re mostly going to be seeing the backs of surgeons heads as they lean over the patient. From a practical perspective cameras are usually mostly worthless as far as a documentation of anything. There are also privacy issues (we have cameras on the wall of every OR at UVA), and their use is HIPPA proscribed in various ways, and it’s all very complicated.

    As a professional, you should always act as though the cameras are on you, and at a place like UVA they are both literally and figuratively. Students are watching, nurses are watching, other doctors like anesthesiologists are watching etc. For abuse to take place you have to have a huge failure in humanity as a whole, and a whole host of stupid people failing to stop it. I’m surprised no one put an end to this person’s pranks sooner, and see it also as a failure of the other doctors in the room, any medical students present, the scrub and circulating nurses (granted it’s hard to criticize a superior) etc. This wasn’t just a failure of doctors, this was a failure of the whole system to protect this woman’s trust in medicine.

  8. #8 andrea
    July 27, 2008

    “Thus, a patient does not consent to all forms of touching, just ones that are consistent with the procedure authorized.”

    And there is the crux of the issue. Were I having my knee operated upon, I would not expect to have my breasts handled (beyond anything necessary for patient transfer, and I rather doubt that would even require such). Heck, even if I were having an appendectomy, there would be no cause for anyone to be messing around with my genitalia. (Post-hysterectomy adhesions notwithstanding.)

    The tatooing surgeon may have thought he was being “cute”, but the action still shows a lack of professionalism, a reduction of personal boundaries, and a level of objectification of patients. The protests otherwise echo similar protests by bullies of, “What?! It’s just a joke! You can’t take a joke?”

    When the target of such is not laughing because the action takes away from their personal dignity, and/or because the action transgresses their personal space and trust, then No, it is not a joke.

    Dissing all surgeons for the transgressions of a few is irrational and unprofessional. So is excusing such transgressions for all, just because a few have gotten away with such. The local cultural climate may make such actions easier to do, but the responsibility ultimately rests on the individual.

    andrea

  9. #9 wackyvorlon
    August 5, 2008

    It is my understanding that a side effect of some forms of general anaesthesia can be vivid false memories of things like rape. This was discovered when, in one case in particular, the entire surgery had been taped. When the patient claimed something inappropriate had happened, there was incontravertible proof that such a thing had not occurred.

    I think the practice can greatly benefit both the patients and the medical staff doing the work, although I can understand the hesitation towards the idea of being perpetually watched and scrutinized.

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