Totally agree with your feelings, and it’s financially harsh. I can only amuse the court’s reasoning behind the judgment was an attempt to make an example. As we place great trust in the people who treat us, especially when unconscious, and they should be held to a higher standard.
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There doesn’t necessarily need to be. If someone attempted to wrong others in a way that they don’t have any chance of doing again (as I assume this doctor is never going to be allowed anywhere near a medical job again), I’d rather they pay a fine to attempted victims than end up being tossed in prison just so the prison system can make money off of them. I don’t see anything particular wrong with the idea of a punishment fee going to victims, even if the victims ended up not being seriously harmed.
@snapdragon
But by you argument, anyone who was drugged and raped doesn’t have rights.
I can see both sides of this argument. On the one side, this whole situation is kind of ridiculous and the award is way high. On the other side, doctors and medical staff are supposed to be professionals and we need to trust them when we are at our most vulnerable. No one likes to be made fun of, and if the doctor hated the patient so much they could have easily recommended another doctor, or barring that WAITING UNTIL YOU ARE IN THE LOCKER ROOM TO TALK SHIT.
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Yeah after my thyroidectomy, I apparently had a 15-minute conversation with my surgeon about aftercare instructions. I remember none of it. I fell back asleep and when I woke up in recovery the second time, I thought it was the first. Anesthesia can give you weird memory gaps.’
How did he even carry his phone into the procedure room, though? Maybe you don’t have to be nude under a hospital gown for a colonoscopy?
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Prison is a straw-man here; the state is perfectly capable of collecting fines instead of sending people to prison. Just make sure that the people deciding on prison-time or fines have nothing to do with the people running prisons or getting the money from fines.
And no, I absolutely don’t want fines to go to would-have-been victims. This creates way too much incentive for asking for made-up amounts as fines for “damages that the plaintiff thinks that might have happened”.
shrugging
My statement was (paraphrasing) “Punish them any way you want [fine or prison], but the patient does not deserve much”.
Your statement was “I’d rather they pay a fine to attempted victims than end up being tossed in prison”.
You were, however, responding to my point that person A might deserve to be punished without person B deserving to get anything. And arguing about how person A should be punished shouldn’t really be relevant to that.
So, you prefer fines to prison sentences, good. So, have them pay a fine and use the money to teach poor children to read, or something else that you think is more useful than subsidizing for-profit prisons. This argument was not relevant to any issue we were disagreeing about.
Clarification: I did not want to accuse you of dishonestly constructing a straw-man. Straw man arguments happen by accident all the time.
In the end, however, I don’t think that the question of how much money the victim of an attempted crime deserves to get is a question that can be resolved by logical arguments. That’s purely a “values” question.
This was a “the jury hates you” verdict. Your understanding of the law is sound. It could probably get overturned on appeal.
ETA: Specifically the part of the judgement related to defamation. The medical malpractice complaint will likely stand high and tall.
ETAA: IF there is an appeal. If I were the doc involved in this, I would take the licking and lie real low.
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I was so confused… but you meant to reply to someone else… who had replied to me. LOL
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Actually, if you find out about it, become distressed, it falls under the basic definition of “intentional infliction of emotional distress.” The intentional act was such that a reasonable person would recognize its capacity to cause mental anguish, and anguish was caused. Whether a thicker-skinned person would be affected is not relevant and discoverability is not a criteria. The elements of the tort have zero to do with, “Ah, plently of people would be unaffected.” As for falsifying medical records? Boy-howdy is discoverability and potential ignorance not an issue. That’s malpractice no matter how you slice it, and it’s a felony for very good reasons, not least of which being that you can extract money from patients this way. Now, as far as I know, IIED was not a specific claim raised in this case, but that could have been a strategic consideration since people have a knee-jerk reaction to the phrase, despite the fact that it is a lawful tort.
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Just to clarify, it wasn’t “wrongly” diagnosed. It appears that it was an intentional, malicious (for purposes of embarrassment, I guess? I don’t really understand the logic behind it) misdiagnosis because they didn’t like the patient.
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Indeed. Then I deserve damages for being scared half to death, but not damages for being killed. But that’s why I specifically put “I never find out about the bomb” in my example.
As far as the crime is concerned - right. The crime is independent of how much damage was actually done. Criminals need to be punished, even if the crime fails to do much damage.
But the damages paid to the victim should be proportional to the actual damage caused - including, of course, the emotional distress caused by the crime.
The problem with this, of course, is that emotional distress is impossible to quantify. Somebody with a thick skin or different sense of humour might have something like this happen to them, shrug, and move on. Whereas the plaintiff in this case seems to have a very thin skin and suffer a large amount of emotional distress.
Though I agree with you on most of your points… Huge punitive damages do theoretically discourage bad behaviour (but not really, since most people do bad things without expecting to get caught), but paying out those punitive damages to the person affected means that there is a hueg incentive to people to bring forth frivolous lawsuits.
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Emotional distress damages are often, quite honestly, whatever the jury feels it is, and/or as governed by statute. But falsifying medical records often carry statutory and punitive damages. This means no harm need be caused or proven since there is a compelling state and public policy interest in deterring the behavior. This is the case in copyright law. I don’t have to prove injury from infringement, just infringement. This is in part because it’s intrinsically difficult, and the purpose of the tort’s existence is to deter the behavior. Same thing with unlawful disclosure of patient medical records. The disclosure doesn’t have to cause harm for a defendant/respondent to be legally held accountable for damages.
So yes, in most torts you must prove damages, but not all.
Do please explain how my question leads to that conclusion. Be sure to explain how the question of being a “party” to a conversation relates to being a “person”, and how the two concepts are apparently inseparable.
First off, I wasn’t accusing you of supporting date rape, and I apologize if the comment came off that way. It was more of a slippy-slope or fuzzy logic application that someone could use to justify their actions.
Awarding the punitive damages (which is really a fine, not damages at all) to the victim is a way of removing the state’s interest from the award - if it were instead to go to the court, the state, or even a charity of the court’s choosing, there would be an inappropriate influence on the court.
As for the question of whether an unconscious person can be party to a conversation, I think it’s a legitimate question, since there is nothing in any wiretap statute that I know of that addresses that issue. That also means that the argument is best settled by citing case law, not wild speculation or blunt logic tools.
All this talk of thhe law and such is kinda off-topic though. Should probably move to another thread. Let’s call it 1L.
My daughter had tow procedures done on her mouth when she was young. She had a tooth pulled when she was about 5, and she was given Twilight. That was a supremely weird experience, as she was tripping on the ride home.
The next one was a wart removal (in her mouth - think it was a wart - it’s been a while???) and they did complete anesthesia. I was rooting for more Twilight.
I surprised to have the doctor explain to me that it was actually safer for her to be under complete sedation, as they have more control over the amount she is receiving at any time.
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Actually, a lot of hospitals are implementing cameras in ORs. I know because I worked for a company that installed them.
They were used for recording surgeries, also for training new doctors who could watch procedures from another room and control the cameras in the room to see what was going on.
Another use was for the procedure to be monitored by the hospital administration. And by the nurses who would be setting up the room for the next operation.
My understanding, from my co-workers, was that some doctors really hated the cameras and that some of them would go into the rooms and turn the cameras to a wall to prevent anyone from seeing what they were doing.
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