You remember a couple days ago I wrote about that weird case in Washington starring Dr. Woo, the pig-slaying dentist? You know, the more I think about this case the stranger it seems. Here we have this dentist who sticks fake boar tusks in the mouth of his anesthetized patient, who is also his employee, and takes pictures of her out cold with the pig teeth and her eyes preyed open. Then he has the temerity to testify that this is part of his effort to improve office morale. I’ve re-read the majority opinion and the dissent, and I have more to say.
But first, a small digression to serve as an illustration. This reminds me of my favorite dentist story: friend of mine, when he was in the Midwest back in the day — he was originally from suave, chic southwestern Minnesota but happened to be out in hicksville, somewhere in South Dakota — was going out with this woman who was the ex-wife of a dentist. Small town, so not a lot of dentist options. My friend goes in for some cavities, the dentist apparently holds a grudge over the new relationship, and he starts drilling in a way that causes some pain that is markedly out of the norm. So my friend bites him. That’s right, sunk his choppers into the dentist’s hand, took a chunk right out of him in the finest tradition of self-defense and self-help. No cops, no lawyers, just pain for pain. I love this story and believe it deserves wide dissemination as a warning to any dentist who harbors thoughts of misbehavior: among your potential victims are a certain class of persons who, if you attack their teeth, will use those teeth to turn your flesh into a snack. And come to think of it, in the culture in which I came from, I can picture not only this friend fighting back tooth and fang, but also literally dozens of other folks I grew up with. So let this serve as a cautionary tale — not only is my friend Whitefang still out there, but lots more like him too. And remember one more thing: no jury will convict them or hold them liable, particularly if they are among their own.
Now, compare the facts of this story the facts relating to Woo, the pig-slayer. Did the assault on my friend arise out of professional services? I say possibly yes, possibly no. The dentist was legitimately filling cavities, but apparently his jealousy got the better of him and he either carelessly or intentionally began to perform his services in a manner that caused undue pain. As I heard this story from both my friend and the ex-wife/girlfriend, this dentist was not a nice man, and it seems likely some element of intent was present, but given the complex workings of human motive, who is to say exactly where legitimate acts left off and illegitimate acts began? It seems possible to say that they truly were intertwined, although one could point out that the legitimate acts were not those that caused the pain. If the dentist were in some state of anxiety or upset over the loss of his wife to another man, it is possible he simply botched the job — perhaps he was not very skillful to begin with and emotional distress caused him to lose what few motor skills he possessed. Or perhaps some words passed between them during the procedure — "How is Susan? " (not her real name), "She’s much happier now that she’s away from a jerk like you" — and he simply lost it. You can see where this would be a close call on a duty to defend question, but almost surely a plaintiff’s lawyer would word the complaint so that it was alleged that the pain arose out of negligent, incompetent work that was done by a guy in a state of such high anxiety that he should have known it wasn’t safe for him to fiddle around with the patient’s mouth. The duty to indemnify is another matter that would depend on how the jury determined the facts.
As the dissent in Woo pointed out, the coverage issues boil down to two: were Dr. Woo’s acts an "accident" within the meaning of the policy, and did his acts arise out of his providing dental services? If what he did was not an accident — something that is neither expected nor intended by the insured — it is not covered. Likewise, if what he did arose not out of dental services but something else, it is not covered.
Let’s step back and think for a minute. Consider the following hypothetical illustrations of a range of acts, and see which you think arise out of professional services or business activities:
- A dentist normally plays Mozart as background music in his office. However, one night the cleaning crew mistakenly throw out his Mozart CD’s, and his office manager puts on a Wagner CD. This is not wise — Wagner makes him very agitated, especially "Ride of the Valkyries," and he goes nuts on his drilling and filling, doing very poor hack work and causing bodily injury.
- A dentist is bummed because his Porsche has a recurrent stalling issue and the mechanic keeps charging him an arm and a leg and not fixing the problem. One day the mechanic comes in for some dental work. The dentist decides to recoup some of his payouts by doing some work that is necessary, but much that is not.
- A dentist is working on an anesthetized patient when his ex-wife storms into the office and demands increased alimony and child support. He becomes enraged, and attempts to swing the big light positioned over the patient into his ex-wife. Unfortunately, it misses her, swings around in a full circle and breaks the patient’s jaw. Whoops.
- A dentist with a very highly developed sense of fashion is working on an anesthetized patient when he decides the man is a tacky dresser. They are roughly the same build, so he takes some spare clothes he has in the office, undresses the guy and outfits him with a new regalia.
- A dentist working on an anesthetized patient notices a "50 Cent" tattoo on the man’s neck. Thinking the tattoo artist negligently failed to add the "s," and having some tattoo training, he adds it himself. In the later lawsuit, he learns 50 Cent is a hip-hop artist and that the tattoo was only a temporary inked-on transfer that the man was wearing for a week because he had lost a bet with a friend over who was the best-selling hip-hop artist.
- A dentist insists that his staff refer to him as "Doctor." This is very important to him, as two of his brothers and a sister are medical doctors. One assistant frequently fails to do so. One day, while he is working on an anesthetized patient, she forgets for the 1000th and last time. He pulls out a 9 mm Glock and shoots at her, but misses and kills the patient.
- A dentist is manufacturing explosives in his office for a planned terrorist attack. A dental salesman checking his stocks accidentally knocks over a couple jars of nitroglycerin, blowing up himself and a nearby anesthetized patient, but not the dentist, who is shielded from the blast by the patient’s body.
- A dentist who is very fond of the Marx Brothers puts a Groucho wig, mustache, nose and glasses on all anesthetized patients, sticks a cigar in their mouths and photographs them for his private collection.
- Lastly, some details from the dissent in Woo: his employee, Tina Alberts, informed him that she cared for abandoned pot-bellied pigs and had even named one Walter. Woo had made remarks such as "I am going to hunt Walter down and kill him," "I am going to barbecue him," and "I will find him and eat him." Woo went boar hunting and brought photos of a dead boar to show Alberts, as well as a picture of himself in front of a skinned pig hanging on a hook. Alberts had two baby teeth that had never been replaced by permanent teeth. Woo said he would remove them and replace them with implants. On the day of the procedure, he gave her general anesthesia. "However, Woo had prepared a pair of artificial boar tusks without Ms. Alberts’ knowledge or consent. While Ms. Alberts was anesthetized and sleeping, Woo removed the oxygen mask, inserted the boar tusks in her mouth, and took mocking photographs, some with her eyes pried open . . . Woo had the pictures developed and prints made at a public photo shop. A few days later, Ms. Alberts was given one wrapped package as a birthday present. Upon opening the package, Ms. Alberts saw the pair of shared boar tusk ‘flippers’. Moments later, Dr. Woo’s assistants gave Ms. Alberts another envelope. The envelope contained pictures of Ms. Alberts, while under anesthesia, with the boar tusks protruding from her mouth while her lips and eyes were pried open. She was stunned. Woo exhibited no remorse at the time, telling Ms. Alberts she ‘had a trophy to take home.’ Ms. Alberts suffered severe emotional distress as a result of the experience, left the office, and never returned." (Citations to the trial court record omitted).
So what do you think? It seems to me the first example both stems from providing from dental services and constitutes an accident, but not the rest, unless we are going to say that anything that happens in a dentist office is dentistry, and unless we are going to say doing crazy stuff that is likely to result in injury is an accident merely because you didn’t think the consequences through.
One more thing. The Woo majority stated that the correct perspective on whether Woo’s acts were intentional was as follows — did he intend his acts to result in emotional distress to Alberts? The dissent disagreed, and pointed out that the policy language defines an accident as "a fortuitous circumstance, event or happening that takes place and is neither expected nor intended from the standpoint of the insured."
According to the dissent, all that should be examined is whether Woo intended the act, not the result. I’m not sure I can agree with this. Say you are in your yard playing catch with your daughter. You are not the ball player you once were, and while attempting to demonstrate how to throw a curve ball the ball sails over the hedge and bashes your neighbor in the head. Or say you intended to throw it high to show her how to time her leap. Either way you intended the act, but not the result. Should your homeowners insurer not defend you because of that? What if you throw a birthday party for your neighbor, and give him a Cubs hat, not knowing that he has some weird phobia about the Cubs that causes him to have a seizure, fall down and injure himself? You intended to give him the hat, didn’t you? But how would you know the result would occur? It would be better to look at Woo’s conduct this way — anyone must know that if you taunt someone about killing their pet, and if you monk around with anesthetized patients, and if you present folks with memorabilia that both reminds them you want to kill and eat their pets and makes them cognizant that you monked with them while they were in your care for a medical procedure, you are going to cause that person to be very, very upset. Depending on who the victim is, they might be so upset that they bite you. If you claim you couldn’t see this coming, there is no excuse for you. The law should consider that a result is intended when the result is substantially certain to happen because of the act.
One last thing: if this case interests you, you should check out this post on Woo by Jason Barney, a guest blogger at Overlawyered.