Ignorance is Strength
Via a Stitch in Haste, we learn about more members of the ‘sweep it under the rug’ club:
David Oliver Burleson, 49, an anesthesiologist whose license was suspended for two years in October 2005 … acknowledged to the Oregon Board of Medical Examiners that he inappropriately touched women whom he had sedated before surgery.
The board … gave its findings to the Multnomah County district attorney’s office. Prosecutor Christine Mascal presented the grand jury with a witness who balked at providing names of other possible victims of Burleson. … The witness, through his lawyer, argued instead that patients, if told about the abuse, might be scared away from further medical treatment.
I expect regular readers will see the tie to those who lose control of your personal information, and want to not tell you. But on the off chance that you don’t see the link, one more quote:
“If the sexual contact was touching only without penetration, then the victims would be living in a state of ignorant bliss about what had happened to them,” [one attorney] said.
From “Ruling keeps sedated victims in dark” at Oregon Live, via “A ‘Right to Blissful Ignorance’?”
I think I’m going to start awarding a “Liddy” for best coverup of the month. It’s named for both G. Gordon Liddy, and for those wanting to keep a lid on things.
I have to admit, I’m not sure exactly how the victims were harmed. I mean, it’s creepy, and he should lose his license to practice medicine. But it’s hard to see what damage was actually done. Suppose a victim wanted to sue for damages–what damages could she show, exactly? “Something happened to me while I was unconscious which would have deeply offended and upset me if I’d been awake for it. And when someone told me about it, it really made me mad.”
I’m certainly not saying this guy isn’t a creep. Just that the damages in this case aren’t real obvious.
Perhaps this is a bit like a privacy violation in which some distant voyeur who will never have anything more to do with you turns out to be peeking in your bedroom window. Creepy, and you’d like to make him stop. But it’s not so obvious how he’s harmed you, especially if you never find out about it until, say, the cops tell you after they’ve arrested the guy.
This seems different from identity theft and FBI file access stuff, right? I mean, part of the problem with the FBI ransacking through a lot of data is that it’s upsetting to have snoops ransacking through details of your life, but surely a much bigger problem is that you’re worried you’ll end up as the next Jose Padilla, or on the no-fly list, or getting blown away in a midnight raid after some overzealous bureaucrat misinterprets something.
This is not the same as “the identity theft/FBI access stuff” as you put it. I think that privacy invasions can happen even where there’s no direct fiscal harm which happens.
This sort of thing is an assault on human dignity, and a betrayal of trust. And there, it is much like the “oops, we lost your records.” They, too, betray trust, and they, too, want to cover it up, claiming that there’s no damage done.
1.) The crime committed is Battery [Law. an unlawful attack upon another person by beating or wounding, or by touching in an offensive manner.] Calling it abuse or ‘inappropriate touching’ is an attempt to diminish the perceived severity of the offense. Please, lets call the crime by its real name.
2.) This has become a matter of public record.
3.) Patients of this doctor must now deal with the ‘not knowing’ if they were or were not battered.
I contend that all of the patients should file a class action law suit demanding damages resulting from the ‘not knowing’ burden that they bear.
Even if the witness were to then divulge specific instances of battery the burden of ‘not knowing’ is still present in all of the other patients.
This ‘not knowing’ should be construed as an insult equal to or greater than the original battery.
I have to admit, I’m a bit surprised by this … Are y’all running a kangaroo court here, or what?
As far as I can see, no crime was proven. In the first instance, it was the members’ own board, not a court, and not competent to try crimes. In the second instance, it was a grand jury, again, not a criminal court, and formed to issue indictements.
Everything there makes sense. All the grand jury is supposed to do is return the indictments. What difference does it make to them if witnesses appear who don’t know what happened?
Where’s the coverup? The judge simply deferred the question to the real court case.
Even then it is likely that the witnesses will be deemed of very little use. How can you prove damages by telling someone she was damaged and then ask her how much she was damaged?
However, it is likely that the criminal court judge will rule that those in blissful ignorance have a right to be unblissed, so they’ll get their chance at civil damages after the criminal case.
“Ignorance is Strength” isn’t inappropriate, but I like “kangaroo court” better 🙂
Ian,
I think that a grand jury may want to consider if there was one incident, a few or if it was a regular feature of surgery. I don’t know if that’s a reasonable request, but as I understand it, grand juries have pretty broad power to investigate.
Adam
@Iang:
If the indictment w.out this information is for the same counts as it would have been otherwise, then fine. It is not clear to me that that is what happened here, though. If not, there will not be a “real court case” to defer the matter to. That is bad.
The notion that had penetration occurred this would all be different baffles me. Is sexual battery OK as long as penetration doesn’t happen? They’re both pretty violative IMNSHO.
Adam,
You are right, in that “abusing the patient’s privacy” is a regular and unavoidable feature of surgery, which is why it is in the first instance a breach of ethics, controlled by the industry association, rather than something that automatically would involve the courts. So far what we know is that this event was serious enough to be passed across from the board review to the prosector / grand jury. That system is working, then.
On the question of additional investigation … sure it is permitted, but I side with the judge and say it wasn’t needed. The quality witness said the act was committed. The additional names cannot possibly add to that, and would probably detract from the clarity of any indictment. Even if there is no indictment, the additional names cannot add any evidence.
(Adam and Chris both) on the question of number of acts. The prosecutor could have asked for that number, sure. OTOH, in America, it is easy to file for an unknown number of parties, “to be proven at trial.”
Adam:
I see why it’s creepy, but not how to measure or quantify the damages. It seems a lot like a peeping tom kind of crime to me, in the sense that the victims might never know it had happened. And while I agree this this anesthesiologist should lose his license and probably go to jail, I’m not sure how to measure what damage was done. It honestly doesn’t look to me like it makes any of the victims any better off to inform them, assuming there’s no further effect of the crime.
You could argue they have a right to know, and I don’t know that I’d disagree. But if you did the utilitarian calculation–sum up everyone’s well-being before and after informing them–I think you’d find that the net well being in the world had gone down as a result of informing the victims.
Again, this seems very different from information breaches where someone’s selling your information to criminals so they can get credit cards in your name or something. It’s more like finding out that there’s a clerk at the doctor’s office who reads through peoples’ medical records for the voyeuristic thrill of it, especially concentrating on people with weird or interesting sex-related problems. When the doctor finds this out, she should fire the clerk. I’m not sure whether she would or should send out a letter to everyone whose files might have been read by this clerk, though. (Assume no chance that the files were copied and resold or anything like that.)
Rights are a sort of shorthand for logic well tested over time and experiences.
In the case of “right to know the risks” it is based on a fairly fundamental issue that the risk-bearing party — the patients in this case — are better equipped to determine whether and how to carry the risk. In general, disclosure gives them that chance, and we specifically deny that the suppliers have some sort of lock on measuring the risks of their customers.
In this case, however … when/if it gets to court … it does seem reasonable to argue that the suppliers (medics, lawyers) do have a better grip on the risks to the patients.
It will be interesting to see how it goes. Perhaps they could set up a phychological counselling service for people believing to be victims, and only advise the of the real facts (such as they are) after some degree of counselling?
Mostly to iang, but to everyone. A person who commits sexual assault and battery on an unconscious woman may “graduate” to commiting the same offense on a woman who is awake. And what if there was “penetration?” The doctor obviously thinks it is in his best interests to deny that he raped the unconscious women, but what if he did? How would you feel if your daughter or wife was the victim in that case? I cannot tell from your screen names if you are men or women, but your comments lead me to think you are males and don’t see why sexually molesting unconscious women is a bad idea. To say that no harm was done, well, if no harm was done, then why did the medical board take away the doctor’s license? Justice Brandeis defined privacy as the right to be left alone, and I would think that going to the hospital should not include a fear of rape. (Not to get too technical, but the fact that the doctor did not define what he did (touching) leads me to suspect that what went on wasn’t stroking her hair.
Beri,
Everything that you say may be correct, but the accused also has right to have these questions answered in a formal court of law. What is being debated here is on the verge of stripping those rights away. If we agree with that, let’s go back to drowning witches and burning heathens at the stake.
Well, we’re already most of the way there, aren’t we! If we agree with no trial for this guy, then let’s forget any trial for the terrorists in Guantanamo Bay. Lock ’em all up with those caught with laptops (obvious paedophiles) and throw away the key!
Extremism aside …. everthing looks as it should: the medical board confirmed and stripped the licence, then passed it over to prosecution. The grand jury convened, heard the damning evidence, and will (speculation) return an indictment. A horrible court case will happen, and he will (speculation) go to jail.
I do not deny that a harm was done. And I do not accept yet that a crime has occurred, because the court determines that, and in a civilised non-witch burning society, we wait until the court has passed judgement.
What is a serious question is what the harmed victims can add to the story? The judge said “nothing, right now.” I agree.
Iang, if I had your email, I’d send this to you privately as I don’t want to clog up the blog.
If I tell you that something hurts me, you cannot say, “no, it doesn’t hurt.” We cannot judge how another person feels. For example, calling a person a “name” and then being surprised when that person is offended. Yes, we need the court to define and try the specific crime, but we don’t need to wait for the court to know a crime occured, especially since the criminal confessed. And we cannot always expect the jury to convict, even if there is evidence. For example, juries notoriously don’t convict drunk drivers, even in homicide cases, because often the jurors themselves have engaged in drunk driving and feel a certain sympathy for the drunk.
If, for example, the doctor was accused of causing a patient’s death through negligence, should we wait for a court case to take the doctor out of practice. In MA there was a case of a doctor who literally left a patient on the operating table to go to the bank and deposit his paycheck. Sometimes you don’t need to wait for the verdict of the jury.
Beri,
What has anyone said that makes you think we don’t see anything wrong with what the doctor did here?
It may be that a doctor who does these things to unconscious women now will graduate to worse crimes later, but that wouldn’t by itself seem like much of a basis for prosecuting the guy–after all, you could make a lot of arguments like that for jailing almost anyone. (Watching violent movies makes you more likely to go out and kill someone, therefore….) The fact that he committed a crime and that he has demonstrated his willingness to act unethically with helpless patients is the relevant thing. Simply knowing that last bit tells you enough to revoke his license to practice medicine, which stops any opportunity of this guy repeating his specific crime.
But there’s an interesting problem here. The victims of this crime experienced, apparently, no harm from it. They were unconscious at the time. Suppose the crime had never been discovered, and this guy had just keeled over from a heart attack or something. How would anyone be worse off?
Now, if the victims were somehow harmed–say they got an STD or something–then the situation would be different. There, we’d have damages that would exist (as a mystery) whether the criminal was discovered or not.