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"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).

Ella (www):
The worst part of this story is not the questionable Washington Supreme Court decision or the ridiculous jury verdict for Dr. Jackass's pain and suffering, but the fact that according to the Washington State Dental Quality Assurance Commission, this merry prankster still has a license to practice dentistry and administer anesthesia. Remind me to never undergo surgery in the state of Washington.
8.20.2007 8:29pm
PDXLawyer (mail):
There seems to be a lot here that was unsaid/suppressed.

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.
8.20.2007 8:48pm
JB:
One hopes that the free market will swiftly deprive him of the value of his license, as the news of this incident spreads. Surely, were I his patient, I would not be for much longer.
8.20.2007 8:56pm
Dave N (mail):
Professor Scale's posts made the same points as PDX Lawyer. The insurance company should have provided legal coverage and got socked for not doing so.

That, however, doesn't meean that Dr. Woo should not have lost his license over this.
8.20.2007 8:59pm
cirby (mail):
I'm still waiting for someone, in one of these cases, to Baker Act someone because of a filing.

"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?"
8.20.2007 9:06pm
Ella (www):
Thanks for the advice, PDX, but I think you need to read more carefully. The dentist admitted that the events described occured as described - his defense was that it was a practical joke - I will continue to be appalled that Washington State didn't yank his license. Patients under general anesthesia are at the complete mercy of the professionals they entrust their care to and this type of behavior is a complete betrayal of that trust. Woo, by his own admission, didn't just screw up a little bit - he went out of his way to violate every duty and every standard of conduct. Apparently, that's OK in Washington. My only comfort is that he's probably completely uninsurable now.

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.
8.20.2007 9:11pm
Jon Rowe (mail) (www):
If I were Dr. Woo, the first thing I would do is call my ex-employee who got the $250,000, clear my throat with a loud "Eh-HEM," and then start cackling.
8.20.2007 9:24pm
David Sucher (mail) (www):
The Court didn't say that what Dr. Woo did was ok.
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.)
8.20.2007 9:35pm
Fub:
PDXLawyer wrote at 8.20.2007 7:48pm:
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.
I wonder why the insuror didn't think through that angle before refusing representation. They might have doomed him with faint praise.
8.20.2007 10:16pm
Hattio (mail):
So,
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.
8.20.2007 10:18pm
Malvolio:
What I don't understand is why this joker ended up with anything more than $250,000. That was the maximum conceivable extent of his loss. Surely the court didn't award punitive damages too.
8.20.2007 10:49pm
AppSocRes (mail):
Tusk caries make bad law.
8.20.2007 11:06pm
Apodaca:
AppSocRes:
Tusk caries make bad law.
A truly incisive observation.
8.20.2007 11:21pm
adam Scales:
Apodaca,

We have a winner!

That was a terrifically bad pun. Well done!
8.20.2007 11:46pm
JB:
I guess the insurer bit off more than they could chew.
8.21.2007 12:04am
Phantom:
Malvolio:

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
8.21.2007 12:07am
Thomas_Holsinger:
Dissent in <b><i>Alloy v. Mash</b></i>, 38 Cal.3d 413 (1985):
<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>
8.21.2007 12:07am
Thomas_Holsinger:
Phantom &Malvolio:

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.
8.21.2007 12:17am
TruePath (mail) (www):
Let me try telling a different story and tell me what you think of the Doctor's behavior.

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.
8.21.2007 12:31am
ssd:
"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?
8.21.2007 1:07am
Sebastian Holsclaw (mail):
"Woo didn't end up ahead $1,000,000, only $750,000."

He didn't deserve for his insurance company to pay the $250,000, so he 'made' all 1 million.
8.21.2007 1:20am
Dave D. (mail):
....Truepath.....that is hokum ! We should, and must, not limit professional behaviour to certain hours, or certain days or circumstances. Who amoungst us hasn't been the victim of betrayal through the device of " a practical joke " ? I was changing out of uniform when a fellow worker advised me of an emergency call. It was bogus, and when I answered the phone ( as duty required ) in my underwear, he took pictures. To be used to denigrate me, to diminish me, to embarrase me. Is that what you wish to make the standard ? Is that the way you want your daughters crash call to be ...avoided....until I'm dressed ? Do you want my best, or my self protective best. Your call .
8.21.2007 1:20am
Waldensian (mail):
Amazingly, this sad story about Tina Alberts and Dr. Woo was all foretold in a Steely Dan song from 1975:


Are you with me Doctor Wu
Are you really just a shadow
Of the man that I once knew
She is lovely yes she's sly
And you're an ordinary guy
Has she finally got to you
Can you hear me Doctor


They got the spelling of Dr. Woo's name wrong, but that's still much better than Nostradamus ever did.
8.21.2007 1:23am
Baxter (mail) (www):
TruePath, thank you for the injection of some reality into the discussion. I also found the author's hyperbole about the "atrocious" conduct of the dentist just a bit more appalling than the dentist's prank. This guy obviously misjudged his employee's sense of humor, but I've done work for at least two or three dental practices where I would not be surprised to hear that such events had occurred, and where I'd expect the photo to be posted right with the photos of all the smiling kids.

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.
8.21.2007 1:24am
Thomas_Holsinger:
Dave,

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.
8.21.2007 1:31am
PDXLawyer (mail):
Was this dentist a jerk? Seems like it. Would I want my teeth worked on by somebody who did stuff like this? Maybe not. But I still don't see that the insurer's position has much justce here. Insurance is for screw-ups. That's the idea. The dentist screwed up and his insurer (which he paid to help him out if he screwed up) bailed on him.

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.
8.21.2007 1:38am
Carolina:
Am I the only person who doesn't see what the dentist did as that objectionable?

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.
8.21.2007 1:57am
Mike BUSL07 (mail):
Where did the emotional distress damages come from? Since when are there ED damages on what is essentially a breach of contract claim?

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?
8.21.2007 2:16am
Fub:
PDXLawyer wrote at 8.21.2007 12:38am:
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.
I might be wrong here, but my understanding from TFA is that the malpractice carrier mistakenly believed that they weren't obligated to provide defense to Ms. Albert's suit because Woo's act was obviously (to them) intentional. The WA Supreme Court apparently held otherwise -- that the insurer was obligated to provide defense until the act was adjudicated intentional.

Ms. Albert's suit, as already noted, included allegations of both negligent and intentional torts. Both are wrongful.
8.21.2007 2:24am
Carolina:
Mike,

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.
8.21.2007 2:33am
Mike BUSL07 (mail):
Carolina,

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.
8.21.2007 2:42am
Carolina:
Let me add that perhaps my view is colored by having worked in offices where pranks were common. One example:

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.
8.21.2007 2:43am
Carolina:
Mike,

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.
8.21.2007 2:47am
Bob Van Burkleo (mail):
As a non-lawyer I still have had to explain to people 'outraged' by this decision that it wasn't in support of the dentist (though in the Army that practical joke would be considered quite mild and I consider the employee opportunistic) but a decision against the insurance company deciding what 'bad actions' they are going to cover.

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?)
8.21.2007 3:43am
neurodoc:
Were any of the current Supreme Court of Washington judges serving when that court decided Helling v. Carey 30+ years ago? In that one, the court decided against the D doctors, plowing new ground with their ruling that the Ds were negligent in not performing a certain diagnostic test on the P though the professional standard in their specialty (ophthalmology) did not require that the test (measurement of intraocular pressure) be done on those under 40 because the condition (glaucoma) was rare (1 in 25,000?) in those that young. Maybe to balance things out, the court now wants to cut healthcare professionals some slack, so held that this D was practicing dentistry, and thus was owed a defense by the carrier.

"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.
8.21.2007 4:04am
Malvolio:
The $250,000 represented his economic damages. The remaining $750,000 were awarded as mental pain and suffering damages
Wow! I thought, OK, maybe there is some sort of public-policy thing about forcing insurance companies to defend even scuzzy policy holders. But pain and suffering? What kind of suffering -- people knowing that you are a sleazeball butcher of a dentist? Not the insurance company's fault.
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.
Maybe not, but the very next post completely demolishes it, while attempting to defend it:
8.21.2007 4:08am
Malvolio:
[hit the send button instead of the preview button]
the very next post completely demolishes it, while attempting to defend it:
Having their coffee as ingested on the road be of a pleasingly high temperature relative to MacDonald's rivals gave MacDonalds a competitive advantage.
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.
8.21.2007 4:13am
neurodoc:
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. [Bob Van Burkleo]
Your sympathy or lack thereof for the P is an irrelevancy, especially as it relates to the merits of Woo's case against his carrier. Woo and his attorneys undoubtedly had little sympathy for the P too, but they paid her $250K to settle rather than go to trial. There is no reason to think that Woo was being overly generous, especially since he could not count on being made whole later by any court, let alone enriched to the tune of $750K by one.
8.21.2007 4:18am
David M. Nieporent (www):
The one part that Scales doesn't mention is the ridiculous nature of the underlying lawsuit; the idea that someone should win a quarter of a million dollars for being the victim of a practical joke in which she suffered no injury is ludicrous.

There's one victim here, and that's the insurance company.
8.21.2007 5:00am
David M. Nieporent (www):
There's one victim here, and that's the insurance company.
Correction: there's one immediate victim here, and that's the insurance company; in the long run, the victims include all those seeking insurance.
8.21.2007 5:01am
David M. Nieporent (www):
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.
That's the usual ex post analysis. But ex ante, that's obviously not the right analysis; what they're actually doing is disincentivizing people from engaging in the worst misconduct. (Indeed, that's why there's often a public policy against allowing insurance coverage for punitive damages.)
8.21.2007 5:08am
Ella (www):
Wow. Just, wow. It's amazing how many people here grasp the difference between the way you treat your friends or coworkers and the way a licensed health care provider is required to treat his patients (or a lawyer his clients, for that matter). I ran this story by a few health care professionals, including my parents, and all were amazed that he still practices unrestricted, which may give you some idea of just how far beyond the pale this guy's behavior was.

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".
8.21.2007 9:03am
MDJD2B (mail):
One of the problems here is that the dentist was treating a co-worker. This sort of boundary-blurring is bad to begin with. If a health care worker treats friends, family, co-workers, etc., and does not do anything out of the ordinary, this still is a bad idea. First, the professional's judgment is almost certainly skewed by the relationship. Second, if there is a bad result, this can poison the relationship.

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.
8.21.2007 9:57am
Bill Sommerfeld (www):
Can't the assistant now turn around and argue that the terms of settlement were undermined when Dr. Woo won against the insurance company -- she only agreed to settle because the guy was cut loose by his insurance company and unable to pay more than $250K ...
8.21.2007 10:42am
Ella:
Bill - No, unless there's some room for interpretation of the settlement agreement or pretty clear evidence of fraud by Woo. To promote the finality of settlements, courts almost never disturb them for any reason.
8.21.2007 10:49am
Phantom:
Mike BUSL07:


Where did the emotional distress damages come from? Since when are there ED damages on what is essentially a breach of contract claim?


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:


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.


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
8.21.2007 10:53am
Fub:
Ella wrote at 8.21.2007 8:03am:
I ran this story by a few health care professionals, including my parents, and all were amazed that he still practices unrestricted, which may give you some idea of just how far beyond the pale this guy's behavior was.
I wondered how long before somebody would notice that.
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.
I might have looked up my friend's third wife's second cousin's ex-husband, Uncle Vito. I heard once he specialized in fixing teeth.
8.21.2007 11:08am
PDXLawyer (mail):
Bill: No, the settlement wasn't undermined, because the insurer's action affected the strategic position of both the plainitff and the defendant/insured. By denying coverage for defense, the insurer in some sense forced the insured to settle a case which someone with deeper pockets (an insurer, for example) would have taken to trial. The plaintff would have been in a far weaker strategic position if the insurer had done the right thing - defended while reserving the right to refuse to pay any damages.

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.
8.21.2007 11:14am
Ella:
You're so very clever, Fub. And you're right, I should just hearken back to those halcyon days of youth when I played that joke on my drunk buddy or when I took a picture of my boss in his underwear. That is so much more applicable to the issue at hand than the opinion of actual health care professionals who are familiar with the standards of care and ethics in their professions.

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?
8.21.2007 11:23am
Mike Keenan:
The police station?

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.
8.21.2007 11:55am
Ella:
MIke- What Woo did was criminal battery. He willfully caused an offensive touching to his patient while she was under sedation. He didn't do it accidentally or under duress, he didn't merely fail to get informed consent. He planned his actions in advance and then, like the idiot he is, took pictures and gave them to his victim. To compound all that, he abused his position of trust and violated his professional duties. I don't doubt that he and others with similar senses of humor thought it was funny, but whether or not the act was subjectively, or even objectively, funny is not relevant to whether an ordinary person would find it offensive if it were performed on him.
8.21.2007 12:09pm
Carolina:
Ella,

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.
8.21.2007 12:19pm
Ella:
I don't think it was strictly a tortious battery - it's also malpractice and likely criminal. However, I believe that emotional distress damages are recoverable in intenional battery actions and they are certainly recoverable in malpractice. Moreover, the intentional nature of the act, the fact that it constituted an abuse of a position of trust, and the apparent motive behind the conduct would permit punitive damages in many states. I don't know how bad it has to get in Washington before punitives are allowed, but juries and judges apparently have a lot of wiggle room for noneconomic damages in Washington.
8.21.2007 12:30pm
Fub:
Ella wrote at 8.21.2007 10:23am:
You're so very clever, Fub. And you're right, I should just hearken back to those halcyon days of youth when I played that joke on my drunk buddy or when I took a picture of my boss in his underwear. That is so much more applicable to the issue at hand than the opinion of actual health care professionals who are familiar with the standards of care and ethics in their professions.
But apparently insufficiently clever to be understood as humorously supporting your point: that Dr. Woo's behavior was egregiously outside the bounds of medical ethics; and that one wronged by those actions might pursue multiple means to hold him accountable and encourage others to refrain from such violations.
8.21.2007 12:31pm
Ella:
And I have to disagree with another point, Carolina - the "is it funny" and "is it battery" questions are not completely separate, but they are not as blended as you suggest. I might find it funny for my coworker or myself to trip and fall over another coworker's feet, assuming no injury more serious than a bruised ego. I would nevertheless find it offensive if my coworker deliberately stuck out his feet to trip me. Besides, practical jokes are, by their nature, not really harmless. A good part of the humor is based on the humiliation and embarassment to the butt of the joke. The question is whether the butts or the pranksters should be the ones to bear the risk that the butts won't find their own humiliation funny. And, even if you think the butts should generally bear more of the risk, should patients bear that risk when their health care professional decides to play a joke on them during a medical procedure? There may be patients who would find this type of thing funny - I don't think most would and I think the dentist should face serious penalties for his miscalculation, as much to discourage others as to punish him.
8.21.2007 12:46pm
Ella:
Fub - Oops. Sorry.
8.21.2007 12:48pm
Carolina:
Ella,

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.
8.21.2007 12:48pm
Carolina:
Ella,

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.
8.21.2007 12:52pm
MDJD2B (mail):
And I have to disagree with another point, Carolina - the "is it funny" and "is it battery" questions are not completely separate.

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:


Tragedy is when I get a papar cut. Comedy is when you fall into a manhole and


Yes-- practical jokors think the jokes funnier than the jokees.



die.
8.21.2007 1:06pm
markm (mail):
For those suggesting that the insurance company should always defend, and then refuse to pay if the facts warrant it: Isn't this setting the insurance company lawyers up for a conflict of interest? Would they be defending the doctor to the best of their ability (which generally requires trying to prove he isn't a monster), or establishing evidence of his deliberate misconduct for use in denying the claim?


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.

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.
8.21.2007 1:12pm
Mike BUSL07 (mail):
Ella, that's what I've been saying all along. I think you mean to address Carolina.
8.21.2007 1:17pm
Ella:
Carolina - While one of the many fictions that the tort system engages in is that emotional distress and other noneconomic damages are intended solely to make the victim whole, quantifying pain and emotional distress is pretty difficult. Juries make their best guess and often take into account how much they think the conduct of the tortfeasor deserves a penalty. In the absence of punitives, I expect that a jury would award significantly more than nominal damages in this case to punish Woo, even if they didn't think the plaintiff suffered that much emotionally.
8.21.2007 1:39pm
Carolina:
A jury might have, but I would have voted for nominal damages had I been on a jury in that matter. And I'm a plaintiff's lawyer.
8.21.2007 1:57pm
Tony Tutins (mail):
I now have the impression that the plaintiff was the omega dog in the office that the rest delighted to pick on. I think the reasonable employee would not consent to be mocked by her boss as a condition of employment. Her dignity was offended, just like the woman's whose chair was whipped away by the little boy.
8.21.2007 7:18pm
David M. Nieporent (www):
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.
I do want my insurer to take that attitude, so that I don't have to pay premiums which reflect the risk of the insured deliberately engaging in wrongdoing.

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.
8.21.2007 11:16pm