September 17, 2021 • By Dennis Beaver
“Caleb,” non-vaccinated, was in the ER and in very bad shape, his wife, “Linda” standing next to his bed. Based on a video that I have seen — secretly made by Linda, “Because we do not trust them” — the following exchange took place:
Caleb: Doc, tell me the truth. COVID is a hoax. Who or what is responsible for my condition? But, whatever I have, what are my chances for survival based on your experience with people in my situation? Should I start saying goodbye to my family members now? I’m a tough guy and can handle it.
Linda: Yes, we need to know. Just tell it like it is. Give us your honest opinion. Don’t hold anything back.
Dr. Julie: Since you asked me to be truthful, I will not sugar-coat a thing. Regardless of what you believe, your COVID test is positive. Your symptoms match those of other COVID patients and are confirmed by lung x-rays, your dangerously low blood oxygen level – which is why you are on oxygen right now – in addition to the fact that you are morbidly obese and hypertensive.
As your family doctor is in our system, I have reviewed your history which shows you both were warned over a year ago that obesity increases your chances of death from COVID by 50%. You did nothing to address that issue and in fact weigh more today than before.
Folks, there may be a chance to help Linda and the people she comes in contact with if she gets vaccinated. It is too late for you, Caleb. The vaccine would have saved your life, but you made a choice. Now is the time to start saying your goodbyes.”
“It’s a Conspiracy!”
Within seconds of the doctor giving Caleb the dismal news, there, on the video, this “tough guy” fell apart, started to cry, and out of breath, was trying to scream, “It’s a government conspiracy. I can’t die! I won’t let them kill me!”
It was not easy to watch.
Linda, for her part, began yelling at this poor ER doc who only did as requested. “You are taking his hope away! If he dies it will be on your conscience.” Just as she was about to punch the doctor, hospital security arrived and removed her.
Less than 24 hours later, COVID-19 claimed one more victim.
I Want to Sue the Doctor for Medical Malpractice, Emotional Distress
“Mr. Beaver, I believe the doctor committed malpractice by taking all hope away from my husband and caused me great emotional distress. In my opinion, she was cruel. But when I describe what happened to the paralegals of every medical malpractice lawyer I’ve called, I never get a return phone call.
“How can that be? It is as if they are saying, ‘You have no case!’ How can that be, ‘No Case?’”
When distilled down to the basics, the question Linda raised concerns a doctor’s bedside manner – her candor – and if it could be seen as malpractice.
What is medical malpractice?
I discussed the facts of this case with Los Angeles-based attorney Gary Gelfand who is considered one of country’s highest regarded medical mal-practice lawyers. As an adjunct professor of law at Loyola Law School, Los Angeles, he teaches the fundamentals of medical-malpractice litigation.
“There is a great deal of confusion in the public as to what constitutes medical malpractice. Merely because the outcome of a case was not what was expected does not alone form the basis of a malpractice claim. You must show that the established standard of care was not met, leading to the patient’s harm.” Gelfand says, adding:
“I don’t see anything like that here. Here, the physician was asked to level with Caleb, and specifically to tell him, ‘Who or what is responsible for my condition? Am I going to die?’ She answered all of his questions, and Linda’s as well.
“Her bedside manner was matter-of-fact and not judgmental. Caleb made a choice to refuse vaccination. That decision plus his obesity landed him in the ER and led to his death.”
Emotional Distress?
The video and Linda’s later comments showed that she was very upset after hearing the doctor’s lecture. But could any of this qualify as a basis for a lawsuit claiming intentional infliction of emotional distress?
Gelfand doesn’t see it and provides this analysis:
“Certain kinds of behavior can be horribly offensive and psychologically damaging. An example used in law school is that of a practical joker who thinks it would be funny to tell someone that an accident has caused serious injury or death to a family member. The law holds the prankster liable for the emotional impact of such a ‘joke.’ The elements of an intentionally caused emotional distress lawsuit include:
(1) The defendant’s conduct is outrageous.
(2) The defendant acts for the purpose of causing the victim emotional distress so severe that it could be expected to adversely impact mental health.
(3) The defendant’s conduct causes such distress.
“Dennis, none of that is present here, and in fact, both husband and Linda specifically asked the doctor to ‘Tell it like it is.’
“There is a reason lawyers are refusing to return her phone calls.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.