Julie L. Kessler
lawyer traveler writer


Unjustifiable invasion of privacy; or, no clowns in the operating theater, please.

When I think of life’s greatest moments of vulnerability, I think of birth (as in giving it), death (though since I still possess a beating pulse I have no true empirical evidence on that event), and being unconscious — as when one is under general anesthesia in an operating room setting.


Those extremely vulnerable moments in life force the vast majority of us in the West to rely completely on physicians. We rely on them to keep us comfortable, safe, and, at least with regard to childbirth and surgery, to help us come out on the other side of the event with our dignity and honor intact, and hopefully also with a healthy child and without whatever it was that required the surgery in the first place.


There is of course the “normal” anxiety that one has when facing these challenges. For example, will one’s pre-authorized insurance ultimately cover the procedure when the claim is finally submitted? Will there be any complications from the birth or the surgery or the anesthesia? And will all the people in the operating room remember exactly why they are there and what to do and operate on the correct body part, and also remember not to leave anything behind in the surgical site, such as sponges, instruments, etc.? Without a doubt, that is a very tall order indeed. But by and large, day in and day out, the vast majority of doctors and nurses in this country do their best every day, and in the exercise of their sound professional judgment, based on years of education and clinical experience, they also do the right thing. There are always however, in medicine as in law and the other professions, the outliers.


One must watch out for the outliers. But how do you do that when you are unconscious and intubated in an operating room having surgery?


In 2011, at a large regional hospital in Torrance, California, Dr. Patrick Yang, a board-certified anesthesiologist with over 20 years of experience, not only forgot why he was in the operating room, he also lapsed into the behavior of a twelve-year-old, and not a very mature one. When the patient, a long time employee of the hospital, was under general anesthesia, he cut out and colored some stickers and then stuck them on the patient, giving her a black mustache and yellow tear drops under her left eye. If that weren’t bad enough, he then permitted a nurse’s aide to take photos of the defiled patient with the aide’s smart phone. (The propriety of smart phones in operating rooms are a subject best left for another day.)


Should we be at all surprised that a lawsuit followed against the anesthesiologist, his medical group practice and the hospital? In his deposition, Dr. Yang said, “I thought she would think this is funny and she would appreciate it.” Did he grow up in a cave and then attend medical school in a galaxy where lame schoolyard pranks are an acceptable expression of scientific prowess?


My anesthesiologist friends have told me more than once that they liken their specialty to that of a long-haul airline pilot — incredible stress at intubation (takeoff) and extubation (landing) that book-end hours and hours of sitting accompanied by undeniable boredom on those occasions when there are (thankfully) no complications (as in flying over the Pacific or Atlantic with a full tank of fuel in clear skies). That may be true, but if one doesn’t want the book-end stress/boredom roller coaster and prefers instead constant stress, then perhaps one might want to consider a different specialty, such as emergency medicine or trauma surgery. Or if one wanted substantially less stress, then perhaps a change to a specialty in dermatology or pathology would make more sense. Or maybe a different profession altogether should be selected.


Engaging in this kind of unprofessional conduct is morally offensive at best and utterly reprehensible at worst. It also flies in the face of some of the very basic tenets of the Hippocratic Oath to do no harm. As in all professions, one bad apple taints the others. Of course thousands of physicians go to work every day and bust their medical chops for their patients, often with little or no fanfare, and very often with reduced insurance reimbursements or payments that are far less than in preceding years, while their expenses and malpractice insurance coverage, of course, have increased exponentially.


The group practice in which Dr. Yang participates suspended him for two weeks, but he remains in good standing at the hospital where the offensive behavior occurred.


Even though I’m a lawyer, I am often the first one in the room to advise against filing suit against someone else. This is so not because I’m a pacifist or afraid of a fight, but because sometimes the price is simply too high and a friend or client’s best interests are often better served in other ways, such as mediation, arbitration, or sometimes by simply walking away from a toxic situation despite the loss. That said, in a case such as this, where the hospital did virtually nothing and the self-policing of the anesthesiologist’s group practice didn’t do all that much, John and Jane Q. Public are best served by this private suit brought by the patient, whose privacy rights were invaded and thoroughly disregarded. And I don’t believe this is lawsuit lottery, as has been suggested by attorneys for the hospital in their motion to dismiss the patient’s case. Sadly, sometimes the only messages people and institutions can truly understand are ones they receive where they can hurt them most — in their wallets.


If this patient litigant is successful in her case, it will hopefully have a chilling effect on a physician possessing the desire to engage in pubescent pranks at the most inappropriate time possible — while a patient is under their care and completely vulnerable and dependent on the physician’s education, experience and sound professional judgment. Here’s hoping.

Date Posted:  Sep. 9 2013