22 November, 2012

Final exam.

This story takes the form of a law school examination question. First I will read you the fact scenario, followed by a series of questions designed to test your understanding of the legal issues at play.

Please listen carefully. There will be no repetition.

Here we go:

There is a doctor. One day this huge woman comes into his surgery. A spewing volcano of skin, stomach and ass, and she’s got this problem with… you guessed it her ass. Which is just catastrophically big. So she bends over the table and the doctor takes a look and she’s got this sort of fungus or pus going on down there. Like around her anus. Which apparently is pretty common because the doctor right away knows what it is, it’s ass gonorrhoea. So the doctor gets out this little gardening tool thing used for specimens (the technical term for which is speculum - it’s sort of a pair of blunted flattened scissors that you hold like a gun and it separates things and takes a sample at the same time) and he pushes apart her ass cheeks and uses the speculum to take a sample of the ass gonorrhoea. Standard procedure. 

So now he’s got this gardening tool implement with about an inch of pale yellow pustular… well not shit but you know, discharge, the ass gonorrhoea, and he’s turning around to put the specimen in the little plastic bag they send to the lab when his hand slips off the woman’s tectonic ass and he pitches forward and braces his hand against the examination table, which causes his other arm to hit the nearby instrument table, with his elbow, which knocks the hand that’s holding the speculum backwards towards his face, and because he’s simultaneously pitching forward the sample end of the speculum goes right into his mouth.

Now the doctor plays it cool and just takes it out of his mouth and throws it away and goes to brush his teeth and take another sample. Remember the patient’s facing the wall and so has no idea what’s happened. But the nurse helping the doctor is so disgusted that she starts to vomit into the garbage can by the examination room’s door. Braces her hands on either side of the can’s rim and heaves up the Big Spit. And because the can is pretty low to the ground the nurse doesn’t have her head all the way in the can but rather a foot or so above and you can see everything she’s bringing up like untreated sewage - which basically that’s what it is, when you think about it - and the patient of course sees and not to mention smells this and freaks out and unfortunately happens to have chronic stomach problems, on account of being so hideously obese, plus she’s bent awkwardly over the examination table in a kind of snowman jack-knife thing that’s putting all kinds of pressure on her intestines large and small, and her ass is there giving a whole new meaning to the phrase moon shot, and she lets out a belch that makes the fillings in the doctor’s teeth rattle. Then she herself starts vomiting all over the wall and the examination table and all of this just makes the doctor even more desirous of being able to go brush his teeth. His wife refuses to kiss him for like a month afterwards.

Question one: Can the patient sue the doctor for physical and emotional distress? In the course of your answer pay particular attention to the issue of causation; specifically, can the doctor argue that it was not his own malpractice that caused the patient’s distress - i.e., his accidentally taking a mouthful of ass gonorrhoea - but rather the nurse’s reaction to his malpractice, and that but for the nurse’s vomiting the patient would not have suffered any harm? Alternatively, can the doctor argue that the patient’s pre-existing conditions - her morbid obesity and chronic stomach problems - were the real cause of her adverse reaction, and he can’t be responsible for illnesses he doesn’t cause?

Question two: Can the nurse sue the doctor for physical and emotional distress? In the course of your answer please specifically consider whether the nurse’s status qua nurse requires her to be especially desensitized to medical grotesquery, which would make her reaction to the doctor’s venereal mishap unreasonable and so prevent her winning any lawsuit.

Question three: Can the doctor sue the nurse and patient for the damage done to his surgery by their respective vomiting? In the course of your answer be sure to address your analysis of multiparty causation in question one - e.g., if you argued that the patient could not sue the doctor because the nurse’s vomiting supervened the doctor’s eating ass gonorrhoea as the cause of the patient’s injury, does that mean the doctor is similarly prevented from suing the patient? - as well as your analysis of the nurse’s professional capacity in question two - e.g., if the nurse can sue the doctor for emotional and physical distress, can the doctor nevertheless sue the nurse for the property damage caused thereby?

Question four: Assuming the doctor can sue the nurse and patient for the damage to his surgery, can he also sue for loss of consortium? [NB. Loss of consortium derives from the Latin phrase per quod servitium et consortium amisit, which translates as “in consequence of which he lost her society and services.” In this case, the doctor’s loss of consortium is the monetary value of his wife refusing romantic attention for a month after he ate his patient’s clap.] In your answer be sure to discuss any defenses available to the nurse and patient, including whether they should be responsible if the doctor goes home and blabs every detail of his day to his wife, or for his wife’s hypersensitivity to the few particles of Neisseria gonorrhoeae that plausibly remained in the doctor’s mouth after multiple tooth brushings.

You have 60 minutes to complete your answer. Good luck.