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Improper Conduct with Anesthetized Patient
ISSUE: What are the potential ramifications of improper conduct toward an anesthetized surgical patient?
A male surgical technician was hospitalized for a tonsillectomy that would be undertaken at the hospital where he worked. In preparation for the procedure, the patient received general anesthesia. At some time during pre-surgery preparation and/or during surgery, two of the hospital nurses painted his fingernails and toenails with pink nail polish and wrote notes on the bottoms of his feet. When he returned to work after the surgery, the nurses continued to tease him and make jokes about his sexuality, telling other hospital employees that he was "gay" and that they had painted him to look "like a little girl."
The patient sued the nurses and anesthesiologist individually in addition to the hospital, for intentional infliction of emotional distress. He claimed that the incident and its aftermath created a hostile work environment that caused him severe emotional distress. He alleged that he experienced nausea and loss of sleep and appetite as a result of feeling that his coworkers had violated him. He further claimed to have experienced extreme anxiety from not knowing what else might have been done to him while he was under anesthesia, and felt so uncomfortable that he was forced to leave his employment. He contended that he suffered further emotional distress after administrative personnel at the hospital ignored his complaints regarding the assault, failed to acknowledge any wrongdoing and failed to punish the perpetrators. He also sought exemplary damages, arguing that the acts against him had been committed with malice and that the hospital had authorized, ratified and approved the assaultive conduct of its employees.
The hospital and individual providers argued the patient's claims related to the provision of healthcare and were, therefore, healthcare liability claims subject to the state's mandatory expert-report requirement. They argued that an expert report had not been served within the period specified and that the lawsuit should be dismissed. In this state, a healthcare liability claim was defined as a claim "against a healthcare provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury to or death of a claimant."
A male surgical technician was hospitalized for a tonsillectomy that would be undertaken at the hospital where he worked. In preparation for the procedure, the patient received general anesthesia. At some time during pre-surgery preparation and/or during surgery, two of the hospital nurses painted his fingernails and toenails with pink nail polish and wrote notes on the bottoms of his feet. When he returned to work after the surgery, the nurses continued to tease him and make jokes about his sexuality, telling other hospital employees that he was "gay" and that they had painted him to look "like a little girl."
The patient sued the nurses and anesthesiologist individually in addition to the hospital, for intentional infliction of emotional distress. He claimed that the incident and its aftermath created a hostile work environment that caused him severe emotional distress. He alleged that he experienced nausea and loss of sleep and appetite as a result of feeling that his coworkers had violated him. He further claimed to have experienced extreme anxiety from not knowing what else might have been done to him while he was under anesthesia, and felt so uncomfortable that he was forced to leave his employment. He contended that he suffered further emotional distress after administrative personnel at the hospital ignored his complaints regarding the assault, failed to acknowledge any wrongdoing and failed to punish the perpetrators. He also sought exemplary damages, arguing that the acts against him had been committed with malice and that the hospital had authorized, ratified and approved the assaultive conduct of its employees.
The hospital and individual providers argued the patient's claims related to the provision of healthcare and were, therefore, healthcare liability claims subject to the state's mandatory expert-report requirement. They argued that an expert report had not been served within the period specified and that the lawsuit should be dismissed. In this state, a healthcare liability claim was defined as a claim "against a healthcare provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury to or death of a claimant."
From your analysis of the case, assess whether the following statesments are true or false:
| * | Any action taken by a healthcare provider that involves a patient will be seen as treatment related. | True or False |
| * | Practical jokes involving an anesthetized patient, even if a co-employee, are inherently unprofessional. | True or False |
| * | A physician supervisor has no obligation to prevent hospital staff from improper actions upon a patient who is under the physician's care. | True or False |
Expand to check answers
GENERAL PRINCIPLE: A claim is a healthcare liability claim if it involves standards of medical care and allegation of a negligent act or omission that is an inseparable or integral part of the rendition of medical services. Actions that are not the rendition of medical care may result in personal and hospital liability not requiring expert testimony to be presented by the patient and quite possibly not covered by malpractice insurance.
APPLIED PRINCIPLE: The fact that the actions are taken by a physician or healthcare provider does not necessarily mean that a lawsuit arising out of the conduct is about a patient's treatment, lack of treatment or other departure from accepted standards of healthcare. The resolution of allegations resulting from non-care conduct does not require expert testimony, does not implicate any standards of care, does not involve hiring or professional training on the part of the hospital, and does not relate to medical or healthcare.
In this case, many of the factual allegations did not even take place while he was a patient, but occurred after the fact in the context of workplace discrimination. No expert testimony from a medical or healthcare professional was needed to determine the propriety of the nurses' actions, as no professional judgment or expertise was implicated in determining whether the elements of the alleged assault and intentional infliction of emotional distress claims were met. The same is true for the anesthesiologist, who was sued because he was a supervisor present during the incident and failed to prevent the assault − not because of any duty arising from his role as a healthcare provider.
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APPLIED PRINCIPLE: The fact that the actions are taken by a physician or healthcare provider does not necessarily mean that a lawsuit arising out of the conduct is about a patient's treatment, lack of treatment or other departure from accepted standards of healthcare. The resolution of allegations resulting from non-care conduct does not require expert testimony, does not implicate any standards of care, does not involve hiring or professional training on the part of the hospital, and does not relate to medical or healthcare.
In this case, many of the factual allegations did not even take place while he was a patient, but occurred after the fact in the context of workplace discrimination. No expert testimony from a medical or healthcare professional was needed to determine the propriety of the nurses' actions, as no professional judgment or expertise was implicated in determining whether the elements of the alleged assault and intentional infliction of emotional distress claims were met. The same is true for the anesthesiologist, who was sued because he was a supervisor present during the incident and failed to prevent the assault − not because of any duty arising from his role as a healthcare provider.
| * | Any action taken by a healthcare provider that involves a patient will be seen as treatment related. | False |
| * | Practical jokes involving an anesthetized patient, even if a co-employee, are inherently unprofessional. | True |
| * | A physician supervisor has no obligation to prevent hospital staff from improper actions upon a patient who is under the physician's care. | False |