The idea of having your genitals and masculinity mocked by your doctor while laying unconscious on an operating room table is unappealing to say the least. But is it worth half a million dollars? As first reported by Washington Post reporter Tom Jackman, a Fairfax County man identified in court papers as “D.B.” inadvertently recorded his entire colonoscopy, and was later shocked to discover he had been ridiculed and insulted shortly after drifting off to sleep. He won a $500,000 verdict in his lawsuit against the anesthesiologist, Tiffany Ingham, and her practice, including $100,000 for defamation (you know, that tort that’s supposed to be about preventing and redressing attacks on one’s reputation). In my view, no defamation damages should have been awarded in this case, but it’s hard to imagine the case coming out any other way with the current limitations of the Virginia Model Jury Instructions.
Because D.B. recorded the procedure on his smartphone, the case presents a rare opportunity to listen to the actual words claimed to be defamatory as they were spoken. An excerpt of the recording is embedded below. One interesting question is whether the recording was properly admitted into evidence, as the recording would be considered illegal unless D.B. was a “party to the communication” (see Va. Code § 19.2-62(B)(2)), and D.B., though present and the subject of the discussion, was unconscious. But I digress. Listen to the recording and ask yourself: when Dr. Ingham remarks to her colleagues in the operating room that D.B. may have “tuberculosis in the penis” or syphilis, is she joking around, or asserting literally that D.B. actually had these conditions?
When I first heard the reference to “tuberculosis in the penis,” I thought it was the nonsensical equivalent of “bronchitis of the elbow,” because everyone knows tuberculosis is a condition of the lungs. But apparently “tuberculosis in the penis” is actually a thing, so you should assume that the medical professionals in the room were aware of that.
Even with that awareness, I’m confident you’ll agree with me that Dr. Ingham was poking fun at her patient and cracking jokes, not making a medical diagnosis. If no reasonable listener could have concluded otherwise, the court should have ruled as a matter of law that the statements were not assertions of “fact” and therefore not
actionable, even if not literally true. But let’s assume that the rash on the patient’s penis was such that it actually could have been tuberculosis or syphilis and that a reasonable listener might conceivably have interpreted the statements literally. That’s when it becomes the jury’s duty to evaluate whether the statements actually conveyed a defamatory meaning. They can’t perform this duty, however, unless they receive proper instructions.
In this case, the trial court instructed the jury (see Instructions 24 and 25) to “return your verdict for D.B.” if he proved that (1) Dr. Ingham said “No, you’ll accidentally rub up against it. Some syphilis on your arm or something” or “It’s probably tuberculosis in the penis so you’ll be all right”; (2) the statements were about D.B.; (3) they were heard by someone else in the room; (4) the statements were false; and (5) Dr. Ingham knew the statements were false. That is not enough!
In a case like this, where the defendant admitted to making the statement, instructing the jury to give the plaintiff a win merely upon proof of these five items virtually guarantees a plaintiff’s verdict. The instruction is woefully defective because it fails to inform the jury that they should consider the statements in context, considering such things as tone, audience, and surrounding statements. Clearly, Dr. Ingham was not making a literal assertion to the operating team that D.B. had a condition known as “tuberculosis in the penis” – she was making a joke. It was received by those in the room as a joke (they can be heard laughing in the background). Defamation law is supposed to protect against false attacks on one’s reputation. It’s not supposed to enable lawsuits against those who would mock the appearance of your private parts.
The instructions given in this case were taken straight from the Virginia Model Jury Instructions, so it is certainly understandable that the judge would be inclined to read them to the jury as phrased. Unfortunately, many Virginia courts rely so heavily on the Virginia Model Jury Instructions that they tend to read them to the jury exactly as worded in the template, regardless of their applicability to the case. According to the written policies in place in Fairfax County, “Use of the Virginia Model Jury Instructions is strongly encouraged, as these instructions will generally receive favorable consideration from the Court if supported by the evidence.”
But the Model Instructions are just that: a model, to be reworked as necessary to fit the facts of a particular case. Model Instruction 37.097, on which the instructions in this case were based, is written to apply to the straightforward situation in which a defendant said what she meant and meant what she said. That is not how people communicate all of the time.
Looking at Instructions 24 and 25, the crux of the deficiency lies with part (4) of each: simply asking the jury to determine whether the statements were false, without regard to context or meaning. If the defendant was making a joke, or speaking ironically, or metaphorically, or using a rhetorical device like hyperbole or exaggeration, then of course it was false! Statements like these, however, are not interpreted literally and therefore don’t cause harm to reputation.
(Note: Had I been representing the doctor, I would have also argued that the instruction should have informed the jury that the operating-room discussions were covered by a qualified privilege, and that it was up to them to determine whether that privilege had been abused.)
For a statement to be actionable as defamation, it must have a provably false factual connotation and thus be capable of being proven true or false. As the Supreme Court of Virginia recently reaffirmed in Schaecher v. Bouffault, statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a defamation action. No matter how unprofessional, insulting, or offensive, rhetorical hyperbole is not actionable.
Sometimes it’s not clear whether a statement is intended literally or jokingly. For that reason, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. If a judge determines that a particular statement is potentially defamatory and may be reasonably interpreted as stating or implying actual facts, it then becomes the jury’s job to decide how the statement should be interpreted. Here, however, the jury was not informed of this obligation or even afforded the opportunity to exercise it.
One of the jurors was quoted in the Post to have said, “there was not much defense, because everything was on tape.” This just goes to show that the jury didn’t realize an insincere statement not understood by anyone in the operating room as a literal assertion of fact should not result in defamation liability. They didn’t realize that because no one told them. So if the idea of D.B. winning $500,000 in this case sounds crazy to you, blame the jury instructions, not the jury. We need a Model Instruction that will enable juries to consider the true meaning of a statement alleged to be defamatory, not just whether it was uttered.