“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."I wanted to punch you in the face and man you up a little bit" isn't defamatory, but the anesthesiologist also commented on a rash, calling it "some syphilis on your arm or something" and "It’s probably tuberculosis in the penis, so you’ll be all right." Since he did not have syphilis or tuberculosis, that was a false statement. I would have thought the best argument is anyone who heard the remark would have understood it as a joke.
“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.”Well, he seems to have missed a point. Oh, jurors! Sigh.
One of the jurors, Farid Khairzada, said that “there was not much defense, because everything was on tape.”
Imagine doing colonoscopies all day long and not being able to joke around a bit. All those cell phones, and all those states that have one-person consent rules. The jurors were rightly offended, of course. In addition to the "punch you in the face" remark, the doctors talked about "misleading and avoiding" when he came to and pretending he'd already spoken to the doctor. They made fun of his college — which was once only for women — and wondered if he was gay, and they wrote "hemorrhoids" on his chart, though he didn't have hemorrhoids. So no one's going to feel much sympathy for the doctor, and I bet a lot of us are planning to hit the record button before going under in case there's $500,000 to be found via colonoscopy.