"How a Dentist Assaulted a Patient and Made a Million Dollars":
Washington & Lee law professor and insurance law expert Adam Scales has a fascinating column on this at findlaw, here (part I) and here (part II).
"How a Dentist Assaulted a Patient and Made a Million Dollars":
Washington & Lee law professor and insurance law expert Adam Scales has a fascinating column on this at findlaw, here (part I) and here (part II). |
In the first place, according to the story as written by the professor (who seems to be an advocate for the insurer in a real sense) Woo didn't end up ahead $1,000,000, only $750,000. Sure, it is still a lot of money, but this leads me to wonder wat other details this presentation has left out in order to avoid confusing us.
Secondly, I've done some work on issues of insurance coverage and the duty to defend, and I think the court got it pretty much right here (leaving aside the damages question). It is often very difficult to tell whether there will be indemnity coverage in advance of an actual trial and determination of the issues. The right solution (the only practical solution as far as I can see) is for the insurer to defend, reserving the right to deny indemnity.
Also, as a practical matter, smart plainiffs' attorneys who have a clear claim of intentional injury will often plead a claim of accidental injury in order to get insurance coverage - they will "plead into coverage." Given these kinds of games, it is inevitable that an insurer will end up defending claims that it has no intention to pay if it loses. Sorting the facts out is just too hard.
Ella, you should be careful not to believe everything you read in the papers.
That, however, doesn't meean that Dr. Woo should not have lost his license over this.
"Your Honor, looking at the papers in front of me, I'm convinced that the plaintiff is a nutcase. Instead of having a civil trial, can we just lock this guy away because he's crazy?"
I also find the decision's broad sweep - basically anything short of sexual assault that occurs in the doctor's office is a covered event, including this vile "practical joke" - disturbing, but I expect that insurers will make the language in their policies a little narrower in future.
The Court simply said that it is for a court to decide, not the insurance company.
At least that's how I read the majority/dissents. (It was big news here in Seattle and I actually did read the opinions.)
Given that this guy hasn't lost his license, maybe it's not Plaintiff's lawyers fault that medical malpractice insurance costs keep rising. Maybe, just maybe, a profession that insists that good doctors and dentists continue to subsidize the screw-ups of folks like this (plus the total incompetents) by refusing to take their license is at least as much at fault.
We have a winner!
That was a terrifically bad pun. Well done!
Read the article again. The $250,000 represented his economic damages. The remaining $750,000 were awarded as mental pain and suffering damages (which, even I, a liberal Plaintiff's lawyer think were excessive).
As a complete aside, I found the hot coffee comment offensive. That case gets trotted out by tort reformers all the time, but the facts suggest that the award may not have been all that unreasonable.
--PtM
<blockquote>
<i>"... I respectfully dissent. With the exception of the majority opinion, I know of no case which suggests that an attorney whose advice is correct may be held liable for malpractice.
Relying on the standard developed in Smith v. Lewis (1975) 13 Cal.3d 349 [118 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231] and its progeny, fn. 1 the majority concludes that an attorney may face malpractice liability despite the fact that the law is ultimately resolved in accordance with the advice given. Although this application of the Smith standard follows logically from its emphasis on the duty of care owed a client, it nonetheless raises a troubling anomaly: where the law is unsettled, the attorney who gives advice later determined to be correct may well have committed malpractice, while the attorney whose advice turns out to be erroneous may avoid liability entirely.
The law cannot tolerate such incongruous results.
...
... Because Mash committed no error, the malpractice claim must fail.
It is imperative that a lawyer remain free to choose one of a number of reasonable and legally supportable solutions to an otherwise unsettled legal question and advise the client accordingly without facing a malpractice suit."</i>
</blockquote>
I personally handled a hot coffee summary judgment motion as a trial court research attorney. There were more than a few expert witnesses who wrote declarations stating that the temperature MacDonald's official policy kept coffee at was dangerously higher than the industry standard, and that the injuries such hot coffee caused were predictable.
MacDonalds' policy was due to its discovery that most of the coffee it sold was consumed off the premises by drivers. Having their coffee as ingested on the road be of a pleasingly high temperature relative to MacDonald's rivals gave MacDonalds a competitive advantage.
At the cost of inflicting significant burns on some of its in-store customers.
MacDonalds changed this policy after enough judgments made punitive damages a possibility. Those would have cost it the profits it earned burning its unlucky customers.
Suppose you walk into your dentists office for a checkup and the staff are all giggling over the picture of one of the assistants with the funny teeth in her mouth. You ask your assistant what happened and she explains with obvious amusement how the doctor took the picture when she was having her teeth fixed before quickly reassuring you that the dentist wouldn't ever do this to someone he didn't know/work with.
I don't know about the rest of you but I wouldn't think twice about it. I certainly wouldn't rush out of the dentist office in horror at his lack of ethics or bad behavior. I mean it's not like I never took a funny picture of one of my friends passed out drunk. In fact I'd probably take this as a sign of a positive social work environment that would likely result in happier workers and hence better care.
Now obviously this isn't how this situation turned out. However, if your reaction to my story is the same as mine it doesn't seem we can conclude this particular fellow did more than make a mistake or misjudge a worker. Maybe it shows he was insensitive or maybe it shows this employee showed every sign of appreciating the humor but unpredictably reacted intensely in this case.
--
Now I had an extremely rough time in school with teasing so I appreciate more than anyone that what seems like good fun for one person can be horrible, psychologically scarring verbal assaults to another. However, if americans are going to insist on working all the time we can't keep fun and casual interactions out of the workplace (if we want the workplace to be professional we need to work fewer hours) and we can't then turn around and say the mere fact that things went bad means someone was behaving horribly.
Of course I suspect in this case the dentist was behaving badly, just as a statistical matter. However, without more facts it could just as easily have been the assistant who gave the wrong signals.
You think her mouth was dressed like a slut?
He didn't deserve for his insurance company to pay the $250,000, so he 'made' all 1 million.
They got the spelling of Dr. Woo's name wrong, but that's still much better than Nostradamus ever did.
I also thought the author's analogy to kidnappers with medical skills was absurd. This event occurred in the midst of a dental procedure to which the patient had consented. We generally presume that consent to medical and dental procedures is at least partially premised on the belief that the practitioner has insurance that will compensate for results of bad practice. If the courts decide that decisions to depart from good practice vitiate coverage just because the decision seems outrageous, they are really just making it more difficult for the patient to recover for the worst misconduct.
When I was going through orthodontia after extensive jaw surgery, I selected colors for the rubber bands of my braces based on the next major holiday. Orange and black for Halloween, green &red for Christmas, blue &red for July 4th, green for St. Patrick's Day, etc. They were really impressive when I smiled.
Now I have to wear retainers for the rest of my life. While they come in Sparklies these days, among other things, I chose uppers with Watermelon green &red mixed with black streaks, plus lowers which are half fire engine red and half day-glo yellow. It makes them easy to find.
Obviously, there have to be reasonable limits on insurance to make the bargain work, but the idea that somehow it is OK for a liability insurer to leave its insured without a defense because the insured's underlying act was wrongful is simply incoherent. If the underlying act wasn't wrongful, there would be no liability and no need for either defense or indemnity.
Are the Washington dental licensing authorities falling down on the job? I don't know - seems to me like a practical joke which had no long-term adverse consequences to the patient, other than purely dignitary ones. Overall, the public is better served by more dentists, because hopefully that will keep the costs of dentistry down.
The dentist was providing free dental work to a member of his staff, which he obviously doesn't have to do. Secondly, the photo of the boar tusks was not submitted to CNN or posted all over town. It was just used as a gag photo at an office get-together. Third, the rest of the office staff were in on the joke and everyone presented the photo to the aggrieved employee together. This strongly suggests that none of the other staff thought this joke was "over the line."
Now I agree it was a questionable prank. But I've both seen and heard of far worse pranks being pulled in law offices, and no one resorted to litigation.
I mean, c'mon, the author of those two essays actually compares Dr. Woo to dentists that sexually molest their patients while under anesthesia. That's just absurd. It was a practical joke that maybe went a bit too far.
My guess would be the state supreme court shared this view to a certain degree, and that perhaps informed the result.
Secondly, Carolina, you emphasize that the dental work in question was provided free of charge. I'm a bit rusty on my model rules (for lawyers) here, but which one says that you are allowed to treat your pro bono clients differently than the clients who pay you? Is there any reason why this should be different for dentists?
Ms. Albert's suit, as already noted, included allegations of both negligent and intentional torts. Both are wrongful.
Obviously there is no rule saying pro bono clients can be treated differently. But this was not an indigent charity case, it was an employee getting gratis dental work. My point is simply the dentist had an employee-patient, whom he nicely worked on for free, and on whom he played an in-office practical joke, a practical joke in which the entire office staff had a part (at least in the presentation of the photo). This is not litigation worthy, not even close, to me.
To again make the lawyer analogy - more explicitly this time - there is a rule that a client is a client, regardless of who pays for them, and of whether anyone pays at all. One rationale is that a lawyer is in a position of trust and power with respect to the client. As much power as the lawyer has over the client, it does not compare to the power that a medical professional has over a sedated patient. The latter's power is almost literally absolute.
Second, and while I am no expert on Washington law, I encourage you to look up common law definitions of the claims asserted by Alberts - battery in particular.
When you play a practical joke, particularly a very mean-spirited one, that involves an offensive touching of another, you run the risk that they might sue, not finding it funny. Woo should have known better.
Very senior partner badly rips his pants on the way into work. Partner passes his pants out his office door to his secretary to have her dash over to a seamstress and get them fixed. The other attorneys thought it would be funny, as soon as the secretary left, to tell the pants-less attorney that the state supreme court had phoned and set an emergency hearing in one of his cases in one hour (that was plausible given his cases). Everyone had a big laugh at the expense of the attorney running around in his skivvies scrambling to prep for an imaginary hearing.
That kind of thing builds office camaraderie, diffuses tension, etc etc. Anyone who would sue over such a thing ought to be sent to humor boot camp, in my opinion.
Even if you disagree, though, I just don't see how a $250,000 verdict for a photo circulated only among employees in a small dental office is supportable by law or common sense.
I am not arguing that Woo did not commit a battery under a strict reading of the tort. I am saying that within an office, among people who know each other, regular people don't sue over such things. Or at least the people I know and work with.
I mean, I as a patient shouldn't have to worry about the provider doing something his insurance will refuse to cover. If they don't have to cover intentional bad humor, can they decide to not cover intentional using of below industry standard materials or procedures?
The insurance company's recourse was to not renew coverage, not deny that they had any obligation to cover the dentist and indirectly his patient.
Considering all the bad practical jokes I've been the butt of in my life I really can't begrudge the dentist from winning his case against the insurance company considering I have no real sympathy for the office worker. (or is that just sour grapes because I didn't sue when jokes were pulled on me?)
"Woo's insertion of the boar tusk flippers was intertwined with and inseparable from the real treatment he performed on Alberts[.]"?! (italics added) The "real treatment" could have been, and should have been accomplished without the insertion of the boar tusk flippers and intra-operative photography. It was only "intertwined with and inseparable from real treatment he performed on Alberts" because Woo used the opportunity he had with her anesthetized to carry it out.
the very next post completely demolishes it, while attempting to defend it:So MacDonalds was serving hotter coffee -- not to save themselves money, in which case it could be argued that the award internalized the previously external cost of burns, but because their customers preferred it. In other words, the "victim" went to MacDonalds exactly because the coffee was hotter there, then mishandled it and blamed the injury on someone else.
There's one victim here, and that's the insurance company.
For the record, a practical joke is when you trick your senior partner into running around the office in his underwear. A joke is when you take a picture of a friend passed out drunk with, perhaps, his arms around an inflatable woman. While practical jokes are usually just immature or meanspirited pranks, they do not include waiting until you've knocked someone out for the purposes of performing surgery then, without the patient's consent, inserting foreign objects into bodily orifices. They do not include then taking pictures of that event to memorialize it, passing them around the office, and, just to ensure that the humiliation that must have been a primary object of the "joke" happens, presenting the pictures to her with great ceremony at a party. Perhaps those of you who think that this is acceptable behavior for a health care professional wouldn't mind if a bunch of doctors and nurses, punchy from an all night shift, posed and photographed you in similarly ridiculous positions while you were unconscious or otherwise unable to resist or remember. Perhaps you wouldn't mind med students practicing minor and unecessary procedures on you while you were unconscious without your or your family's consent.
Had I been the patient, the tort lawyer would have been my third stop on the way home. My first would have been the police station and my second would have been the dental board. And in a state that apparently thinks a bad coverage decision causes $750K in "emotional distress" damages to the insured (higher than my state's current cap on noneconomic damages, incidentally), I probably wouldn't settle for a third of that, less whatever cut my lawyer took.
I'll also point out that there was a small, but measurable, physical risk to the patient posed by the insertiion of boar tusks. I wonder how the "benefit" of contributing to the light-heartedness of the (apparently toxic) office environment could possibly be seen to outweigh the risks to the unconscious butt of the "joke".
In the case of the dentist and the tusks, what most would view as a practical joke if played on a co-worker becomes battery when played on a patient. What was the woman in tha chair at the time? The dentist was thinking of her as a co-worker, but she thought of herself as a patient. (Or did so before she went to sleep and after she woke up. Or says she did.) And she is right. The medical aspect of a relationship and its inherent obligations trump the personal or employment aspects.
If you are a doctor, and have to deliver your wife or operate on your best friend, that person stops being your wife or friend during the interval in which you treat him or her, and becomes a patient. Dr. Woo should have realized this.
This, perhaps, is off topic, as it does not address the insurance issue. But I hope it sheds some light on the comments by some about practical jokes in the workplace. The patient context distinguishes this situation from the practical joke played on the senior partner in his underwear.
There is also a question of status. If you play a joke on someone of the same or higher status, he will take it as such, or else be able to respond with some degree of power. If you play practical jokes on your employees, they have less scope for letting you know they don't appreciate it (if they don't). Playing practical jokes on subordinates is more like an exercise of power and less like a manifestation of cameraderie.
Actually, bad faith breach of an insurance contract sounds in both tort and contract. The reason noneconomic damages are permitted in many jurisdictions is that unlike other contracts, the insured is entirely at the mercy of the insurer. In essence, the insurer is a fiduciary or quasi-fiduciary of the insured. Moreover, insureds don't enter into insurance contracts for the usual reasons (mutual economic benefit), instead, they enter into them to provide a measure of security and protection against liability suits. Because of that, damages for bad faith breach of an insurance contract include noneconomic damages. In addition, if your insurer wrongfully (the standard varies depending on the kind of bad faith--first party or third party--and state law--some states have a negligence standard, some have an intentional standard) refuses to defend or fails to settle within policy limits when liability is reasonably clear, it can be liable for your damages in excess of the policy limits.
Malvolio:
Unfortunately, that's not the standard for products liability cases. I may buy a Black and Decker Ultra-rip X27 Mk. 3 circular saw exactly because it's the most powerful saw on the market, but that doesn't obviate Black and Decker's responsibility for producing an unreasonably dangerous product if I'm injured as a result of its excessive power. This is especially so when my use of the product is precisely within the expected uses.
Clearly, in the McDonalds' hot coffee case, McDonalds expected its customers to consume the coffee in the car. It was selling the coffee out of its drive-throughs. It was selling it extremely hot, even though there had been hundreds of previous lawsuits where people had been burned. And it was doing so to obtain a competitive advantage.
Putting aside strict products liability, this looks an awful lot like common law negligence. McDonalds had a duty to act reasonably toward the public at large. It sold extremely hot coffee to people in cars (one might say unreasonably hot). It's entirely foreseeable that someone in a car will spill their coffee (god knows I do, every time I hit a pothole). Moreover, it's entirely foreseeable that without the benefit of a table the spill will end up in the driver or passenger's lap. Here, it did exactly that. As a result, an elderly woman suffered third degree burns to her genitals, requiring an eight day stay in the hospital and two years of additional therapy.
Thomas_Holsinger's comment in no way undercuts my position.
--PtM
David: The insurer here was the "victim" mostly of its own bad judgment. They *could* have undertaken a defense and prevented a judgment for the plaintiff, but chose not to do so. Insureds are rationally much more reluctant to take cases to trial without the deep pockets of an insurer behind them, and therefore tend to settle. They may settle even when their case is strong in order to avoid the open-ended expense of a defense and the chance (even a small chance) of facing a judgment that wil render them insolvent. This is rational risk aversion, and is the basic motive behind buying insurance in the first place.
I think MDJD2B may have identified the real, underlying offense of this dentist - blurring of boundaries. He sorta combined the doctor/patient relationship with the employer/employee one, and that mistake was negligent/reckless, not intentional. Whether it requires jerking his license is something I really don't have an opinion about.
For the libertarians on this blog, this is a datapoint that should affect market behavior. Fireman's Fund agreed to provide this guy a defense when he really needed one (and got paid for that agreement). Instead of defending him, they left him hanging - not because they didn't have the *ability* to defend him, but because they decided they didn't owe their insured the benefit of the doubt. Is this the attitude you want your insurer to take? If not, then maybe this is one insurer you ought to avoid dealing with.
And of course, tort victims should just ignore the criminal aspect and professional violations in favor of getting the maximum recovery for their embarassment. Screw society, get paid. Or maybe you think they should just use a baseball bat and cut out the middle man? After all, what's a lawsuit but tattling to a metaphorical teacher with the help of your big brother?
I don't think the dentist was not trying to humiliate anyone. He thought the woman would think it was funny. It is funny. The only thing outrageous about the story is the lack of a sense of humor.
I'm not sure the "is it funny" and "is it battery" questions are as easily separable as you suggest. If the mythical "reasonable person" classifies an act a harmless practical joke, I'm sot sure it can still be a battery. Or if it is strictly a battery, damages should be nominal only. Had I been on a jury weighing the employee-patients claims, I would have probably advocated for a verdict for plaintiff and an award of $1.
To those who argue this sort of question is "irrelevant" to the insurance issue, I disagree. The state court had to decide whether the boar tusks, during a dental procedure, were within the "practice of dentistry." I would think whether the tusk installation is categorized as a harmless practical joke or a gross violation of the patient's bodily integrity would make a difference in this question.
I agree that emotional distress damages are recoverable as a general matter for battery, but my point is that if I were a hypothetical juror I would disbelieve someone who claimed to have suffered emotional from this specific incident. It strikes me as rank opportunism instead.
Our positions may not be as far apart as I thought. I agree with most everything in your last post. My point is, a victim who finds a joke unfunny and embarrassing is not the same as a victim who has suffered emotional distress worthy of tort compensation. To me, this case is in the "unfunny and embarrassing" but not "compensable emotional trauma" category.
While I agree that this behavior was totally inappropriate and the doctor should have been disciplined, I am nevertheless reminded of a quote I have seen attributed to Mel Brooks:
Yes-- practical jokors think the jokes funnier than the jokees.
die.
Note that under this rule, the victim of sexual assault is likely to get less than the victim of an accident caused by the doctor - the second victim may be able to tap both the insurance company and the doctor's assets, while the first gets only the doctor's assets and a claim against his future earnings making license plates. Maybe there's a more basic problem...
Suppose we change the doctor's liability coverage from insurance against "accidental" injuries to the patient to a bond covering both accidentally and deliberately caused injuries? This would be like the bond I expect a contractor working on my house to have; it should make me whole whether the contractor has an accident that prevents satisfactorily completing the work, gets drunk and falls asleep on the job site while smoking causing a fire, or absconds to South America with my payment. I'd expect the issuer of medical bonds to also sell liability insurance along with it, so in the vast majority of cases where deliberate misconduct isn't present, the doctor won't end up owing reimbursement to the bond issuer. So a normal lawsuit would proceed just the same as now, with the bond/insurance issuer providing the defense and paying any settlement or award.
However, if the issuer thinks there's a question of deliberate misconduct, they're still on the hook to provide a defense and to pay settlements and awards. Then, if they think the case falls outside the limits of the insurance part of the package, they can turn around and sue the doctor for their payout plus their legal expenses.
It doesn't entirely eliminate the conflict of interest I mentioned earlier, but it does mean the the insurer's strongest interest in the first case (injured patient vs. allegedly abusive doctor) is to defend the doctor as well as possible to minimize their payout. And it means the patient is compensated up to the policy cap, if the injuries warrant that, whether it was accident or deliberate.
I mean, the Court's opinion in this case was not based on some ambiguity as to the underlying facts; if that were the foundation for the decision, I'd have much less of a problem with it. The facts (i.e., ordering the tusks, placing them in her mouth, and photographing her) were undisputed. It was clear what had happened, and the court's opinion borders on the dishonest. The claim that placing the tusks in her mouth was indivisible from the medical treatment is silly. The claim that it wasn't intentional because, even though he intended to do it, he didn't intend for her to sue him, is frivolous. The dissent had it right. No reasonable person could find as the majority did.
And for the majority to allow $750,000 in phony damages (sorry, "emotional distress") without any evidence beyond his own testimony is obscene.
To the patient/employee, "Get over it" seems most appropriate; to the dentist, "You made your bed, now lay in it" does.