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Recording leads to large judgment against anesthesiologist

Colorado residents may be aware of one-party consent, the legal requirement that only one person needs to be aware of the recording of a conversation in which they're involved. This issue contributed to the successful malpractice and defamation lawsuit against an anesthesiologist by a patient who inadvertently recorded the doctor during a colonoscopy in 2013. The $500,000 judgement in favor of the plaintiff hinged in part on the fact that the recording was deemed to be legal because Virginia, the state in which the medical procedure occurred, is a one-party consent state.

The recording occurred after the patient used his smartphone to record instructions given prior to the colonoscopy. Failing to stop the recording, the patient unknowingly allowed his phone to capture evidence of defamation and medical malpractice that occurred during the procedure. The doctor made two separate disparaging comments about the patient, which led to a $100,000 reward for defamation. The doctor was also recorded making comments about falsely diagnosing hemorrhoids. The diagnosis of hemorrhoids was included on the patient's chart after the procedure, netting an additional $200,000. The final portion of the award was for punitive damages.

Some instances of personal injury may be difficult to prove, including those in a medical setting involving surgery. Recordings of actual conditions or situations might provide strong evidence of those issues. However, it is crucial that such recordings be legally captured to avoid adverse legal consequences.

As this story demonstrates, recordings under the one-party consent law can help prove defamation or even workplace safety violations. In situations regarding workplace safety, it may be helpful to seek legal guidance related to collecting evidence about on-the-job problems.

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