TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, July 16, 2008

And with that, a surgeon's insurer's head explodes

Just imagine your day if you are the insurer for Steven Kirshner, an orthopedic surgeon. You're filing through the complaints filed against your various insureds -- malpractice, failure to diagnose, failure to treat properly, and...huh?

Putting a temporary tattoo of a red rose on a patient's belly while the patient was anesthetized?

Yikes (via

The doctor doesn't deny it, with his lawyer saying that the tattoo "was intended just to make the patient feel better" and that he's done it to other patients, none of whom have complained.

Arthur Caplan of Penn: "You cannot do something like this even as a joke."

(My daughter, on hearing the basics: "It'd be all right if it was a Radio Adventures of Doctor Floyd tattoo, because then she could find out about a great show!")

(hat tip Rick Linsk)


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Yeah, the patient goes in for back surgery. The next morning, when hubby goes to help her dress to go home, they find a tattoo on her belly, *below the panty line*.

Now, maybe she wears granny panties and that's not as bad as it sounds, but then again . . . .

Posted by: TheOtherOne | Jul 16, 2008 12:12:24 PM

This case brings up a point I have made many times, the standard of practice for plaintiffs.

A video camera shows an oil spill not cleaned up for 8 hours in a supermarket aisle. It documents several loudspeaker calls for cleanup, none of which took place.

However, it shows that 200 people walked around it. One plaintiff slips on it and breaks both hips, and suffers a horrendously expensive medical bill and severe mental trauma. She can no longer care for her 200 orphans in her orphanage. Bereft of her care, several kill themselves, and others. They directly say, it was because we missed our headmistress.

Who cares? She failed to exercise the due care and the standard of behavior of the reasonable, ordinary shopper.

In this case, this woman is the first to object. She is a total deviant from all other tattooees. The court should neither cater nor encourage such deviants. The courts will, naturally. They are total running dogs for the rent seeking lawyer, dependent on both sides for campaign contributions, absolutely biased in favor of litigation, especially in favor of having a trial.

Posted by: Supremacy Claus | Jul 16, 2008 2:01:00 PM

Now THAT is a stretch my friend. I am assuming you have been called a zealous advocate many times, as Judges become frustrated with you.

The old lady who does not look where she is walking is comparatively negligent. She should recover, but not for 100% of her damage.

The woman here consented for surgery on her back, and woke up with a tattoo near her ultimately private place. It would be one thing if the doc put the tattoo on her back near the scar. In that case I can almost see your point. Here the woman's privacy was violated in a terrible manner. If she can show some kind of damage from it, she should recover.

At the least, this doctor should be punished....severely

[Ed. note: it was a temporary tattoo.]

Posted by: Lets be honest here | Jul 18, 2008 5:14:28 PM

I don't see the big problem. Sure, there's a cause of action for battery, but what kind of damages is this person going to be able to prove? Obviously no economic damages and I can't imagine someone would award punitive damages on such a minor infraction. Emotional suffering? From a temporary tattoo? This sounds like the poster child for nominal damages.

[Ed. notes: I assume the argument would be that the invasion of her personal dignity caused emotional distress. Perhaps more than you or I would suffer, but there's the eggshell skull argument, perhaps.]

Posted by: Well... | Jul 18, 2008 5:17:35 PM

Lets: I hope you were smiling when you implied me a lawyer. I take it as a compliment. I am a law savvy party. I love the lawyer, American law, and jurisprudence. I love them enough to correct their huge mistakes. They have IQ's twice mine, but law school indoctrination made them forget self-evident stuff from high school. They need a lot of help.

What about the point that she is a freak in that no other female patient complained? Shouldn't the law cater to the mainstream, the reasonable, and not to wacko freaks?

"Well" makes the proper point, under the law, as it is today.

As to the egg shell skull doctrine, 1) it was made up in the Restatement Second. It was not a restatement of anything. The sole remote precedent was not on point, was weak, and happened in a small jurisdiction. A biased ALI reporter just made it up. It has no legitimacy, either in law, nor in policy, nor in logic. It does promote lawyer rent seeking, its sole purpose. It is not just illegitimate, but unjust; 2) it makes the defendant pay for a pre-existing condition; 3) it allows people with pre-existing condition to game the system, to evade responsibility for preventing further damage, and deters people from serving damaged people. Someone with brittle bones wants to bungee cord jump. That doctrine deters the benefits of that activity, the freedom and pleasure, the economic transaction.

Posted by: Supremacy Claus | Jul 19, 2008 3:13:52 PM

"wacko freak?"

the woman consented to back-surgery and the guy went below her panties. who knows what else he did while he was down there. this is almost sexual assault, and you're comparing her to someone who negligently slipped on a spill?

spare me. you're clearly no lawyer.

Posted by: jack smith | Jul 21, 2008 7:12:26 AM

The law should specific the probability defining the terms reasonable, ordinary, mainstream, or foreseeable. If plaintiff behavior is rarer than once in 100 people under the same circumstances, should the consequences be charged to the defendant? I do not know the number of women who received the temporary tattoo. Let's say it is 1000, without objection, with some finding it pleasant, some recommending the doctor to their friends. Her reaction is too rare to be compensated.

The sun rose in the East 1 million times without exception. That is good foreseeability. A set of numbers has a 1 in 100 chance of winning the nightly lotto. That is poor foreseeability.

The best minimum cut off is 51%. That is the same chance as the preponderance burden of proof. That is the same as more likely to occur than not. In order to validate a claim of battery, over half the prior patients should have complained. If fewer complained, the claim should have no validity, as not reasonably foreseeable.

I reject all supernatural religiously based doctrines such are reasonable, foreseeable or intentional. All violate the Establishment Clause.

Until these are struck down, I am willing to discuss their quantification. In the absence of such a minimum number, the law is not giving enough notice of a violation. A lawsuit for any rare occurrence violates the procedural due process process rights of the civil defendant, repeatedly affirmed to exist by the Supreme Court. This assumes foreseeability as the basis of duty in negligence.

If Jack wants to make all medical mishaps subject to strict liability, he should try to not age. He will be needing a doctor as he ages, and none will be found if strict liability comes to medicine.

Posted by: Supremacy Claus | Jul 21, 2008 10:42:41 AM

supremecy claus [sic], you reason like a college freshman or worse. you said earlier that lawyers often "forget self-evident stuff from high school." well you do a good job at reminding them of that, including the flawed, simplistic reasoning and naive and unnuanced view of the world.

there are so many problems with what you say.

1) i don't care how many women 'liked' his tattoos. they go in for surgery, they get tattoos. not part of the package. the fact that this one was below her panties makes it akin to sexual assault. if he played around under his 100 previous patients' panties while they were under and they liked it, that doesn't mean that this woman has no legal remedy. how you think that's the case is beyond me.

2)"A lawsuit for any rare occurrence violates...procedural due process rights ...This assumes foreseeability as the basis of duty in negligence." - Dude, this is not negligence, it's an intentional tort. If you WERE a lawyer, maybe you'd know the difference. Forseeability here is not an issue.

3) "If Jack wants to make all medical mishaps subject to strict liability, he should try to not age." Again man, not a "medical mishap." He didn't mess up the surgery. He turned her over on her back (where the surgery took place) and reached down her underwear.

Listen. Go and take a 1L torts class, or read a hornbook, or even go look up some of the terms you throw around in a dictionary, then maybe you'll see how ridiculous you look. Just an idea.

Posted by: jack smith | Jul 22, 2008 7:17:58 AM

Jack: I should have been clearer. I am saying, there is a mirror image standard of behavior for plaintiffs. She has to act like others in the same circumstances. If so strange and different, the court should not cater to her deviancy. This is not a duty to mitigate. It is a duty to imitate.

Every page of every hornbook of every law subject contains unlawful supernatural doctrines, borrowed from a specific religion. Law school indoctrination blinds intelligent people to the unlawful and self-evident from 10th Grade World History. The tort profs disseminate this Medieval, unlawful garbage in our secular nation. With one exception, their response to any questioning is censorship. They do not deem it necessary to even consider the steeping of their subject in the unlawful supernatural.

I understand battery is an intentional tort. What is not foreseeable is unreasonable, rare over-reacting. I freak out because a hotel maid thoughtfully leaves a chocolate on my pillow. I am greatly offended by her intentional act. Every one else loves that little extra. Should the court cater to my eccentric offense taking? If offensive, throw the chocolate in the trash, wash off the tattoo. This is not mitigation, but imitation of what a reasonable person would do. A lawsuit in this case is contagion of the craziness of the plaintiff to a lawyer and to a court.

Posted by: Supremacy Claus | Jul 22, 2008 9:05:19 AM

Jack: You may say, chocolate on a pillow cannot offend.

What if I am this guy?,2933,380143,00.html

Using the legal logic of this guy:

I see the chocolate on the pillow as an offensive racial slur. One million prior guests have had positive reaction to chocolate on a pillow. This plaintiff sees it the equivalent of a noose left on a doorknob. Should the court cater to this rare reaction?

Does the plaintiff have a duty to be in the mainstream before filing a claim? If the claim is extreme and rare, should the court make new law by entertaining it? Does its rarity violate the procedural process rights of the civil defendant? The existence of these rights has been confirmed in a half dozen SC decisions.

[One cannot tell from his replies. If Jack is a lawyer, I request that he make his replies more lawyerly.]

Posted by: Supremacy Claus | Jul 23, 2008 4:23:22 AM

i understand what you're saying, but you need to realize that it's not the tattoo that's offensive. it's not that he dared to put a temporary mark on her... it's WHERE he put it. he was putting his hands in her genital area while she was sleeping and without her consent. THAT'S the issue. it's not so much about the appropriateness of the tattoo itself (which is questionable, but not likely criminal), but the fact that, with regard to this patient, tattoo aside, he was touching her in her pubic area without her consent, with no legitimate reason, all while she was helpless and unconscious.

her being upset about that is not deviant at all. in fact, i think it's pretty normal. i don't know what kind of women you hang around with, but i know very few who would consider unconsented to semi-sexual touching as a "little extra" bonus. in my opinion, the woman who wakes up from back sugery and thinks "oh how nice! the dr. drew a smiley face on my inner upper thigh!" is the deviant.

Posted by: jack smith | Jul 23, 2008 9:22:04 AM

Jack: I am making a general point. The defendant should neither pay for the plaintiff's pre-existing thin skull, nor for their mental eccentricity. The most authoritative opinions about offensiveness should come from the prior female patients, from the million prior hotel guests pleased by the chocolate.

If the patient were married to a Taliban, she would not even be allowed to visit a doctor, nor to have any part of her external body gazed upon by a male not part of her family. She would have just suffered her pain, without medical treatment. Gazing upon her face by a doctor, not in her family would be punishable and highly offensive. Is there such a thing as too extreme a sensitivity?

Is it true that most victims of torts do not sue?

If true, below which fraction should the case be thrown out per se, as not within the standard of due lawsuit filing? If 51% of victims file a lawsuit, no argument. If only 1 in a million victims of a tort files a lawsuit, the lawsuit is frivolous per se in accordance with the opinion held by a million people.

While one has never seen this argument as a pleading, it should be pointed out to any jury. It should be strong evidence to the judge the lawsuit wastes the time of the court. It should result in sanctions for this violation. It should be presumptive evidence of a violation of the Rule of Conduct forbidding the filing of frivolous lawsuits. It should be presumptive but rebuttable evidence of an improper motive, including the lawsuit as a symptom of insanity of the plaintiff.

If defendant must act in accordance with the standards of due care of the reasonable person or professional, why is it not fair to demand the mirror duty of the plaintiff?

As to the lawyer claim, there is no duty to adverse third parties, it is rebutted completely by the dozens of enumerated duties to the adverse third party in the Rules of Evidence, of Civil Procedure, of Criminal Procedure, of Conduct, and in hundreds of precedent setting cases. The lawyer may have more duties to the adverse third party than to the client, if someone bothers to count them. It is unjust to have defendants suffer the effects of plaintiff mental illness in the form of a rare lawsuit. That is not just fairness. That is the law as the Supreme Court has been making it. The lawyer is not insane, and has no excuse. If almost no one files a lawsuit under the same circumstances, pull the lawyer's license. To deter.

Posted by: Supremacy Claus | Jul 23, 2008 12:19:34 PM

listen, i understand your pseudo-scholarly breakdown of eccentric plaintiffs and unreasonable strains on the judiciary system, but this is where your logic breaks down in THIS specific case.

i don't think it's right to claim that "the most authoritative opinions about offensiveness should come from the prior female patients" because none of them were touched in their genital area. again, and i already said this but you didn't address it, the issue does not seem to be the tatoo PER SE, but rather the fact that the tattoo is evidence that the Dr. was touching her genital area without consent.

thus, the other patients' opinions are irrelevant - they're not in the plaintiff's same class. YES, they all got tattoos, but the issue here is not so much the rose tattoo as it is the PLACEMENT of that tattoo.

this is why i would dispute your "eggshell skull" argument - it's moot, because the plaintiff here arguably does not have an "eggshell skull," rather she is the only patient that suffered this sort of touching which, quite reasonably, seems to be rather offensive.

as far as making my replies "more lawyerly," i don't really know what you mean. would you like me to use more latin? talk about the reasonableness vel non of unconsented genital touching? i mean, i'm replying to a message board, not writing a tort treatise. speaking of which, you're addressing theoretical macro legal theories and missing the simple things you so denigrated lawyers for overlooking earlier - this doctor went below a woman's panties without permission. who are you writing to? you read some legal hornbook and you think you're God's gift to tort law. if you WERE a law student, you'd be a gunner i'm sure... and gunners rarely make good lawyers.

keep to the basic facts: the Dr. didn't do this [i.e., genital touching] to ANY of these other patients. you cannot anologize a smiley face on patient 1's arm, or on patient 3's wrist with a tattoo on this woman's genitals. that's just foolish, and you don't have to be a lawyer to know that. only a legal professor sitting in his ivory tower or a college freshman would make such a ridiculous assertion.

Posted by: jack smith | Jul 24, 2008 8:30:53 AM

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