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Can a doctor’s unethical behavior be medical malpractice?

Most people associate the term “medical malpractice” with something that physically injures the patient during the course of treatment, such as a botched surgical procedure, a prescription filled in error, or a misdiagnosis. In a recent post we discussed medical malpractice that occurs outside a hospital setting. But what about a doctor’s behavior that has nothing to do with the physiological aspects of the treatment?

At least one recent case has been reported in the media about doctors behaving badly while a patient is sedated, playing practical jokes and verbally disparaging the patient to other staff members. In one that case, a jury agreed that the behavior of the doctor and his staff rose to the level of medical malpractice and even defamation, awarding $500,000 to the man who was subjected to the behavior.

In that case, the patient, knowing that he would be unconscious during a colonoscopy, turned on his cellphone recorder to capture the doctor’s post-procedure instructions. Instead, the recording revealed the doctor performing the procedure saying that she should have manned the patient up a little bit in pre-op. She also commented to others assisting her that a rash appearing on the man could have been syphilis. The doctor also marked a diagnosis of hemorrhoids on the man’s chart, even though he didn’t have them.

In South Carolina, medical malpractice is defined as, “doing that which the reasonably prudent health care provider or health care institution would not do or not doing that which the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.”

Note that the law doesn’t specifically limit the behavior to an actual part of the procedure which could certainly open the door for liability for this type of behavior.

Medical malpractice cases can be difficult to navigate in South Carolina. Before going to court, South Carolina requires that the parties meet in some form of alternative dispute resolution such as mediation or arbitration. If the suit makes it past that step, then a Notice of Intent to File Suit along with the opinion of an expert supporting the claim of malpractice must be filed.

Given the procedural red tape, along with the various natures of malpractice claims, the assistance of an attorney experienced in South Carolina medical malpractice litigation can be an important part of recovering an award.

Source: Techtimes, “Court Awards Patient $500,000 After Doctor Was Recorded Mocking Him During Surgery,” Jan Dizon, June 25, 2015

 

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