by Richard W. Millar, Jr.

After you reach a certain age, colonoscopies are a repetitive fact of life. Like every five years, although now Medicare won’t pay for them unless they are ten years apart. Another instance where it pays to be younger.

Before you run for the hills screaming that there is no way you are going to read an article on “that” subject, I will not be writing about what goes on in the physical or medical sense. I will be dealing instead with the “social” aspects of what happens when you (or at least someone like you) are blissfully sleepy-bye.

Really?

Yes, really.

While you may be asleep, those exploring you are talking. Perhaps about you. Very specifically. Maybe more specifically than you would be comfortable with if you were awake.

As always, a case in point.

Mr. D. B., who is otherwise anonymous, presented (my one concession to medical terminology) himself for this procedure at a medical suite in Reston, Virginia. Because he knew that his doctor would be giving him post-procedure instructions, which he also believed he would not remember in the afterglow of anesthesia, he hit the record button on his smartphone. He put his phone in the pocket of his pants, which were placed in the basket under the bed on which he was rolled into the operating room.

That act made him a plaintiff and the anesthesiologist, one Tiffany Ingram, a defendant.

It seems that once Mr. B. went to the land of nod, he, or parts of him, became the subject of uncomplimentary conversation.

“After five minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit,” Ms. Ingram is recorded as saying to the comatose Mr. B. When an assistant saw that Mr. B had a rash, Ms. Ingram warned her not to touch it lest she get “syphilis on your arm.” Apparently reconsidering, she then said, “It’s probably tuberculosis in the penis, so you’ll be all right.”

At one point, they agreed to and did alter the medical records to falsely reflect that Mr. B. had hemorrhoids (thank you, spellcheck), although the motive for that was, at least to me, unclear.

Well, you get the drift, and so did Mr. B. when he played back the recording, hoping to get his doctor’s post-procedure instructions. So he did what every red-blooded man who had been insulted while unconscious would do: he sued for defamation.

And won.

Big time!

$500,000 worth of big time, including punitive damages.

I think it could be said that while he had a medical colonoscopy, the defendants got a financial one.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.