Colonoscopy. Is it painful if you can't remember it?

@Moliere: The exact level of sedation and what it's referred to is irrelevant. The point is, if he was even just asleep, which he would at least be part of the time with conscious sedation, he was not "a party to the conversation." This is in regard to the legality of the recording.

How the level of sedation should be considered if the patient says to stop is much more complicated.

You say "Once the patient says stop then whatever is being done should be stopped as soon as is possible. There can be some flex for what is needed to finish." That's the whole point: how much flexibility should the dr. have to complete the procedure? When does the patient's withdrawl of consent take effect?

"What if the doctor backed off, dealt with the immediate pain, then reestablished consent under the same mental conditions that it was withdrawn under? That, combined with the initial consent while sober, could work."

^^^^Absolutely not. The question of whether or not consent can be withdrawn once sedated is up in the air, but once someone has been sedated, they cannot re-consent for 24 hours. They are considered impaired.

I don't think there's any value in comparing this to consent during sex. There are sooo many differences. Only the word 'consent' is the same.

As for doing a colonoscopy without drugs, some people may prefer that, but years ago I heard horror stories from many people who had colonoscopies, apparently without sedation and they would never do it again. It should be an option.

The woman having the cholecystectomy couldn't say 'no;' she was under general anesthesia, required when performing an open surgery. My point was, to some degree the doctor needs the flexibility to make certain medical decisions during a procedure. You wouldn't want to be fully conscious during an open cholecystectomy.

With the newer more flexible scopes and doctors who know what they're doing unsedated is now feasable in many cases. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4009549/, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3133991/, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3329613/ and more.

Exact level of sedation may or may not be important. Here is what I consider the salient points:

Pat was explicitly a party to the conversation when it began and he started the recording, he also was an explicit party near the end.

Pat was the purpose for the assembly of the other people in the conversation. He was physically there and he has an interest in knowing what went on.

Pat never physically left the room, he was present for the entire recording.

For most of the time Pat would have been responsive to commands. Per what I have read this is checked during mild/moderate sedation to verify that sedation has not gone deep enough to where more intensive monitoring and rescue procedures are more likely to be needed.

Anesthesiologist organizations have explicitly stated that patients under sedation need to be treated as if they can have recall. This should have been known to the doctor.

Closest precedent I can find would be https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2009cv0335-41 which is District 2. Physical presence and occasional contribution was held to be indicative that he was a party and they also cite a prior court decision in support of their assertion that "As Plaintiff knew that his communications occurred in the presence of and could be heard by others, he could not have had an objectively reasonable expectation that the communications were private." They also point out that the reason for recording has weight - Pat did not have "tortous intent."

I would be inclined to suspect that an equivalent argument could be successfully made if you were asleep and recording as the other parties to the conversation were in the physical presence of you and it is reasonable to expect someone can wake up, therefore an expectation of privacy is unreasonable.

Couldn't find anything explicitly addressing recording while asleep, if you have something would love to see it.

If Pat had not recorded his colonoscopy then he would not have been aware that his doctor apparently acted with little concern for his pain at the time. They could have paused when he started to express the pain, tweaked the meds, then continued, the doctor could have used nonpharmacologic methods to manage the pain, pausing, having him breathe deeply, use of touch, changing positions, etc. Instead he seems to have simply ignored what appear to have been multiple requests to stop. I submit that this is unethical on the part of the doctor, even though we can assume the doctor knew he was not causing any actual damage.

I would be very interested to hear from actual MDs on the sedation and consent question. The main difference between consent in medicine and consent in sex seems to be that we assume doctors to have beneficent motives.

Susie? Eric? That RN from the UK? Anyone who can move this beyond the theoretical?

It is my experience in the operating room, that patients who wake up or can communicate in some manner that they are in pain during surgery are given additional anesthesia to the extent that their age, health and systemic ASA classification will allow. I have never seen a surgeon continue to operate knowing the patient was in pain except for very brief periods where the pain would be over almost as fast as more anesthetic could be given and take effect.

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Consider what I posted earlier in this thread:

A friend of mine was having a knee replaced. She knew the surgeon well because her daughter was the surgeon's friend in college. During the surgery, my friend woke up and spoke to the surgeon, "Jeffrey, what are you doing? that hurts" etc. The surgeon told the anesthesiologist to deepen her anesthesia. She didn't remember she woke up during the surgery. You do not have to remember having pain to have had pain. The surgeon told her she woke up for a minute during a post-op visit.

Thanks, Susie. Yes, I agree that is ethical practice.

There have been lawsuits where patients have been in pain during surgery and the patients have won large settlements.

@moliere: I agree, Pat was part of the conversation when it began (though he did start the recording before the others were in the room). And during those moments when he awakened/regained consciousness, he was part of the conversation, if only by yelling. But I don't agree that someone who is asleep is part of a conversation just because their physical body is present. That seems to me to go against the intention of requiring the person to be part of a conversation. And I don't think one can make much of a case that a sleeping person is 'a party' to a conversation, since that person neither hears nor speaks when asleep.

That Pat would not have known what was going on if he had not recorded it, is irrelevant. That's an ends justifies the means argument. One may claim the end justifies the means, but that doesn't change the illegality of the actions, though it may speak to the ethical issue.

I don't believe the case you cited was on point at all. In that case, the plaintiff claimed the person who was recording the conversation, and in fact, put the recording device on the table in plain site, was not 'a party' to the conversation because he wasn't invited, despite the fact he was an active participant in the conversation. The judge ruled that being 'invited' to a conversation had no bearing on whether or not one was 'a party' to the conversation. In addition, even if the recording in this case were obtained illegally, that would not prevent its use in a civil trial.

But the question remains: what should the doctor have done, aside from calling for more anesthesia. Stopped the procedure all together?

The other question which is implied in this conversation is what are the ethical considerations of using amnesiac medication? As has been pointed out, even if a person doesn't remember feeling pain, they experienced it. Is that ok, as long as they don't remember it once the procedure is over? That's a tough question.

It is my experience in the operating room, that patients who wake up or can communicate in some manner that they are in pain during surgery are given additional anesthesia to the extent that their age, health and systemic ASA classification will allow. I have never seen a surgeon continue to operate knowing the patient was in pain except for very brief periods where the pain would be over almost as fast as more anesthetic could be given and take effect.

Do we know how long Pat was screaming in pain? Could it have been half a minute, the amount of time it takes to give more sedative and for it to take effect? Or did the dr. continue the procedure without additional sedation?

In any case, this doesn't address the question of whether or not the patient actually withdrew consent under circumstances in which it should have resulted in the procedure ending immediately.

The reason I cited that case is in the discussion of the ruling. The second circuit pointed out that a vital part is whether the parties having the conversation have a objectively and subjectively reasonable belief that they are private. If there is somebody right there in front of you, no matter their condition, you cannot be under the impression that you are alone.

“Oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation” is covered by Title III. 18 U.S.C. § 2510(2); United States v. Willoughby, 860 F.2d 15, 22 (2d Cir. 198 😎 (“the speaker must have had a subjective expectation that the communication was not subject to interception, and this expectation must have been objectively reasonable.” (citing United States v. Harrelson, 754 F.2d 1153, 1169-70 (5th Cir. 1985)). “Protection under (Title III) requires not simply an expectation that there will be no recording, but an expectation that the conversation is private. In re State Police Litig., 888 F. Supp. 1235, 1272 (D. Conn. 1995).”

I cannot see the court considering a "yeah, he was right there, we knew he was, but he shouldn't have been able to hear" argument seriously. We can drag out that old legal crash test dummy, the “reasonable person,” and ask if a reasonable man would believe that a communication was not subject to interception if someone else was in the room. Reasonable persons know people can wake up or may not be as asleep as one thinks. Furthermore, the cited Willoughby opinon notes "Mistaking the degree of intrusion of which probable eavesdroppers are capable is not at all the same thing as believing there are no eavesdroppers." which further supports Pat’s actions being legal and acceptable, even if Pat was not actively contributing to the conversation at any time and was in fact unconscious. I also would suspect that a court would consider it unreasonable to expect a person to confine their recording of a conversation to only the times they were fully conscious if they were experiencing mixed states. Again, see the Willoughby case (the portion on the in-person conversation, not the telephone call).

Regarding the pain – where have you seen any argument that “if you don’t remember it it is ok” accepted? A 1 year old won’t remember physical abuse, yet we consider it very seriously. It would have been different had Pat been in a life threatening situation and the doctor had only an amnesiac drug then yes, that would be better than no medication, but that was not the case. While we do not have the recording available, it is highly unlikely that Pat would have been as upset had the doctor reacted to his expressions of pain by telling the nurse “get him some more fentanyl” or similar.

Do we know how long Pat was screaming in pain?

In the recording, when I first started to shout, I was trying to use the 'F' word. It came out as "Fua" 6 times over 1 minute. Then I said in a loud and clear voice "God Damit, STOP". At this time the Doctor replied to me, "I'm sorry Sir, I'm almost done".

During this time a lot of conversation took place in the room very quickly. The anesthetist was calling out numbers, I started to shout and doctor asked if he should he stop and that he was almost there. One minute later someone said something about "his eyes are open". This part was unclear due to machine noise in the room. It was nine minutes later I was woken up and responsive.

There has been some debate about whether or not I was a party to the conversation and therefor allowed to record it. I heard a wise lawyer once say " It's not the law you should worry about, It's how a jury will see it". While I would not want to make a court case out of this, I think a jury of my peers would agree that while laying there mostly naked, it was me that was the subject of the conversation and that I was speaking and I was spoken to.

Pat, sorry, I was going all "head" and didn't mean to demean or dismiss your experience. Yes, I seriously doubt a jury would buy the argument that "Pat should have been forbidden from recording the events of the colonoscopy and finding out what the doctor had put him though." The discussion was hinging on various points of law that, while interesting, do nothing to address your anguish. FWIW from what I have seen of the court decisions it sure seems that a judge would find your presence likely made you enough of a "participant" to make things OK even without your contributions to the conversation. The intent of the wiretap law seems to be to prevent people from bugging a room and/or hiding themselves and recording a conversation with the others believing they are alone. The cited discussions of the court rulings in all of these cases hinge on whether the conversation was illegally gathered, admissibility is not the main discussion.

It seems as though countrysquire is aware of something that I might have missed re: his claims that the possibility that you may have been unconscious removes you from the protection, I would love to see his support for that, as the cases I was able to find in my admittedly short investigation seem to show a developing construction that others awareness of your presence and the possibility that you could participate in the conversation is sufficient.

Pat, I certainly did not mean to deny that you knew exactly how long you were in pain without attempts at relief. That was extremely poor wording and should have been that neither I nor countrysquire knew. My point was that there were things that a good doctor and anesthesiologist would have done in that situation, or even a reasonable person with the capacity to do something, and also pointing out that you probably wouldn't have made a stink if it had only been 10 seconds or so before the doctor did something, anything, to manage your pain.

Interesting corollary - Washington is somewhere between 1 party and 2 party consent. Parties need to be notified that the conversation may be recorded, which is easy enough to do, but in a case like this how do you ensure that the recording is not tampered with while you are impaired? I guess that you would need to request/demand a witness be present. Sad that this would be necessary, but it seems as though the doctors and staff may not be trustworthy. I wonder how much of this has to do with the fact that the professional relationship between the patient and specialists such as these is shallow compared to an ongoing relationship with a doctor you see often.

Well, I just wiped out my response. I'll try again.

I think it's a stretch to compare the basis of a case where someone was present, participating in the conversation and openly recording it, to someone who was unconscious/asleep. That the portion of the recording made while Pat was awake is legal, is not in dispute; it's the question of if he's unconscious, is he 'a party' to the conversation. The expectation of privacy of the other parties is a different issue. btw, this is a matter of eavesdropping, not wiretapping.

The possibility of the recording being tampered with is irrelevant on all sides.

A slightly different situation, but I was involved in a conversation where someone asked his attorney if he could put a recorder in his briefcase, with a non-visible mic so it could record when the briefcase was closed, during a conference with the other side. The attorney said that was fine. But when the person asked if he could leave the briefcase in the room when he and his people would be asked to leave, so the other parties could confer, the attorney said that would be illegal. Not a perfect parallel, but along the same line.

@moliere: "Regarding the pain – where have you seen any argument that “if you don’t remember it it is ok” accepted?" Where did I say it was? I opened the question and in fact, said it's a tough question. If we consider one who has no memory of pain the same as one who remembers, what's the purpose of amnesiac medications at all? I've awakened a couple times during colonoscopies and apparently I was in pain, as the dr. was telling me to stop moving and the nurse was holding me still. I recall the conversation, but not the pain, fortunately.

The lawyer who said "It's not the law you should worry about, It's how a jury will see it," is correct in a practical sense, but it's not what should be strived for. It's a red herring in this conversation. Juries are known for coming up with decision based on emotion, totally ignoring fact and law. That said, that the recording may have been made illegally, doesn't prevent it from being used in a civil trial.

@Pat48081: When the dr. asked if he should stop, what did you say?

I know you said in the future you wouldn't record the procedure. But in this case, what do you think the doctor should have done? When you said 'damnit, STOP,' should he have ended the procedure, not having completed it, or should he have waited for more anesthesia to take effect before proceeding, or what? Apparently they did give you more anesthesia, because you awakened nine minutes later.

Sometimes reviewing situations is most valuable for understanding what went on and how to handle things in the future, rather than to assign blame about the past incident.

A slightly different situation, but I was involved in a conversation where someone asked his attorney if he could put a recorder in his briefcase, with a non-visible mic so it could record when the briefcase was closed, during a conference with the other side. The attorney said that was fine. But when the person asked if he could leave the briefcase in the room when he and his people would be asked to leave, so the other parties could confer, the attorney said that would be illegal. Not a perfect parallel, but along the same line.

Not really a parallel. By physically leaving with his attorney when asked he was giving the other side the reasonable expectation that the conversation was private. By introducing a concealed recording device the person was recording a conversation where the other party reasonably expected no other parties could overhear, hence it is illegal, and this is exactly the sort of thing that the Wiretap Act was passed to guard against (see the intent below).

(edits made from here on for clarity to remove late night rambling)

Pub. L. 90–351, title III, §801, June 19, 1968, 82 Stat. 211 , provided that: "On the basis of its own investigations and of published studies, the Congress makes the following findings:

"(a) ... Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private, without the consent of any of the parties to such communications.

Title 18 USC 2510

it's the question of if he's unconscious, is he 'a party' to the conversation.

Pat was present in the room quite obviously. He never left or did anything else to formally withdraw from the conversation. It is absurd on its face to argue that the other people in the room could reasonably assume to be "in private." The conversation was explicitly made with the knowledge that Pat was there and listening (or potentially listening). The sum total of the facts of the case, as well as some admittedly imperfect yet similar cases would appear to support Pat more than oppose him.

Was he a "party to the communication" (the specific words from the wiretap act)?

Caro v Weintraub is very interesting and relevant here because (a) it deals with becoming a "party to the communication" (you don't need to be invited) and (b) the court of appeals held that

"[P]rotection under [Title III] requires not simply an expectation that there will be no recording, but an expectation that the conversation is private.” In re State Police Litig., 888 F. Supp. 1235, 1272 (D. Conn. 1995). Here, Plaintiff clearly knew that David Weintraub was listening to and engaging in the conversation. David and Eric Weintraub sat with the Plaintiff while he and Lynn Corrigan continued their dialogue.

For the other side, leaving the conversation, we have United States v.Tzakis, United States Court of Appeals, Second Circuit Jun 11, 1984 736 F.2d 867 (2d Cir. 1984). Here we have a telephone conversation, so not perfect, but relevant as it was set up as a multiparty telephone call with one person who was for most of the conversation a passive party to the communication, i.e. they listened, contributed nothing, but members knew they were listening (in this case because of an announcement at the beginning of the call by one of the other parties). The court held that they were entitled to make a recording of the conversation as a party to the conversation. Pat was obviously physically present for the entire conversation, so a reasonable person would expect that he was a party to the communication and if they wanted him not to be they would have had to take steps to remove themselves, likely physically (leave the room, withdraw a great distance and whisper, with continuous withdrawal should Pat follow, etc.) Yes, this last bit is conjecture as I cannot find prior rulings, but it is what a reasonable person would do to indicate Pat should no longer consider himself a party to the communication.

Not court, but a semi-authoritative interpretation at the DOJ:

"Party to the Communication" under 18 U.S.C. 2511(2)(c) and (d) A “party to the communication” under 2511(2)(d) is one who is present when the oral communication is uttered and need not directly participate in the conversation. Inside Edition producer, working undercover as a sales agent for a magazine sales company, wore a hidden camera and microphone and recorded the day to day activities of the company that he observed first hand. Pitts Sales, Inc. v. King World Productions, Inc., 383 F. Supp.2d 1354 (S.D. Fla 2005). 22 "The courts that have addressed the issue have held that a defendant has no reasonable expectation of privacy in statements made in the presence of a government agent, even though the agent was not participating in the conversation. See U.S. v. Coven, 662 F.2d 162 (2d Cir. 1981), cert. denied, 456 U.S. 916 (1982). The court finds that a conversation conducted in Spanish in the presence of a third person does not carry any expectation of privacy 'that society is prepared to recognize as 'reasonable,'' Katz v. U.S., 389 U.S. 347 (1967). Such a holding would imply that someone speaking Spanish is entitled to a greater expectation of privacy than someone who only speaks English." U.S. v. Torres, 983 F. Supp. 1346 (D. Kan. 1997).

Yes, it says government agent, but it is the DOJ paper "Electronic Surveillance Issues" so it is written for a government audience (https://www.justice.gov/sites/default/files/criminal/legacy/2010/04/11/elec-srvlnce-issuse.pdf). In practice interception by a government agent is held to a stricter standard, so it should be very applicable to Pat. I do get your point that the only absolutely safe interpretation at this point is that should someone not want to violate the Wiretap Act not recording is the only absolute way, but based on precedent and the "reasonable person" construct he is highly likely to be within his rights. The counter-arguments that I have been able to come up with for the doctor are not nearly as strong, and in fact most are ridiculous.

Interesting but not relevant (yet) aside - in 2014 the Illinois wiretap/eavesdrop statute was overturned by the Illinois Supreme Court as being overly broad on first amendment grounds, in part because of the nature of recorded communication as free speech in the modern world. I'm not in Illinois, so I didn't go into detail to see if this was poor reporting and they meant "Article 1" (of the Illinois state constitution), but "first amendment" is generally held to be the US constitution when standing alone. I wouldn't base a defense on this, but it seems to be showing the times are a'changin.

The possibility of the recording being tampered with is irrelevant on all sides.

Irrelevant legally, but if someone is concerned about preserving a record of what happened to document what happened it is important. I am wandering between law, ethics and individual comfort here, and if a person does not trust their doctor and wanted a record then ensuring it is an accurate record is important to them from an individual comfort angle. To be effective evidence should an action after the fact be necessary it would also need to be untampered with.

Sometimes reviewing situations is most valuable for understanding what went on and how to handle things in the future, rather than to assign blame about the past incident.

Curious where you intended to go with this. Other than indication that Pat should get a different doctor, and possibly support for Pat continuing to record, what can he do? The other future-looking benefit is the more discussion about this kind of thing there is the more we can hope that doctors will not behave as this one did. I must confess that thought I understand the reasons for not disclosing his name it would be nice to know to warn others about him.

This would make a great test case for law students!

Countrysquire, you asked "When the dr. asked if he should stop, what did you say?" When the doctor asked about stopping, my only reply at that point was "Fua". He was speaking to the anesthesia nurse as she was calling out numbers in a panic sounding voice. It was 30 seconds later I yelled to stop.

"But in this case, what do you think the doctor should have done?" I honestly don't know. I don't know why I was yelling to stop because I have no memory of it. It's hard for me to listen to the recording and hear myself in that kind of pain.

Lets say for a moment that I hadn't recorded it and the doctor had stopped when I yelled out. I would have woken up in recovery and been told they couldn't complete to procedure because I demanded them to stop. Having no memory of telling them this, I'd be pretty upset.

I don't know how well anesthesia can be expected to work or how fast they can turn it on and off. I do feel the doctor was working on the premise that I won't have any recall of what happened.

Pat, based on the discussion from Susie et al and Countrysquire's ideas my thinking at this point is that this is how it should have been handled: You consented to the procedure and the anaesthesia/sedation, so the medical staff had permission for the procedure and a duty to properly manage your pain. As there were two medical people managing this there would almost definitely have been some communication indicating that additional anaesthesia or pain management was being given that would have showed up on the recording. This should have been done as soon as you indicated that you were feeling pain. If you want to verify you can request a copy of the records, as drug administration/modification should be noted.

It is a bit unclear as they weren't managing your pain, not sure why. I can come up with some nasty reasons (they don't care, they want you out of recovery faster to save money), and one decent one (they had already given you the max dose), but I can't say why. Basically, it should never have gotten to multiple requests to stop the procedure.

@moliere: You’re right, the briefcase scenario is not on point, but being physically absent from the conversation is only one step away from being unconscious during the conversation. The issue, I believe really rests on what is means to be ‘a party’ to a conversation. Neither the Weintraub case nor the Inside Edition case are relevant. No doubt, one doesn’t have to be invited, nor speak in order to be part of a conversation. But from a common sense position, I don’t believe an unconscious person, who’s body is in the vicinity of a conversation, is ‘a party’ to the conversation. Would a deceased person be a party to a conversation?

As for my comment about using this to better understand situations in the future, I think we really don’t know enough about what happened to assign blame. I wish we’d have some input from one of the dr’s. on here about this. I’m not sure people need to be warned about this doctor. I will say this: I’m currently having some treatments and was going to ask the doctors specifically how they were treating me and then looking it up on the net. After this, I’ve decided not to do that. My doctors know what they’re doing and I don’t need to micro-manage what they’re doing. I thank Pat for bringing this out in the open and being honest about his feelings and regrets.

I don’t share Moliere’s view that Pat should find a new doctor and continue to record such events. In fact, I believe Pat himself said in the future he won’t record such a procedure. Keep in mind, it was his recording, not what actually happened, which caused him distress. I’m not criticizing his recording it; I think his distress is an outcome most of us would not have been able to predict. I certainly wouldn’t have. I’m generally of the opinion I’d rather know everything which went on. But this is a good example of why that’s not a great approach all the time.

I recently had a procedure and had a brief, unpleasant period where I couldn’t move and couldn’t scream, as much as I tried to. Discussing it with the drs later, it was determined that I metabolized the anesthesia faster than the paralytic. In future procedures they gave me more anesthesia and propophol and that worked well.

@Pat48081: Indeed it would make an interesting case for law students, but I think the more interesting views are from the patient and the doctors. Your ambivalence about what should have been done is a sign that you’re trying to see this from the doctors’ perspective. I imagine I too would have been pretty upset to discover they didn’t finish the procedure because I told them to stop, when I had no recollection of it and was in an altered state of consciousness. I was not pleased when they didn’t finish my second to last colonoscopy because they couldn’t and the doctor who could help them, wasn’t there. I’ll just throw this out there, because you know better than anyone why you were yelling. But, is it possible you were yelling about something other than pain? When I was recently trying to yell during a procedure, I don’t believe I was in pain.

Btw, you said you wanted the minimum anesthesia due to a previous experience with nausea after anesthesia. That’s common, but if you tell them in advance, they can include Zophran (anti-nausea med) with the anesthesia.

I don’t think there was a nefarious reason Pat wasn’t further snowed under. More anesthesia than necessary isn’t helpful. I think the idea of including an amnesiac medication is that if the anesthesia wears off too soon, the person won’t have any recall of it and no lingering distress. That angle was undermined by the recording. In fact, there’s a very good reason for them to minimize the pain the pt experiences and that is, that it makes their job easier. So I really don’t think they were doing it on purpose.

This has been a very enlightening discussion and I thank Moliere and Pat. I’m sorry Pat experienced this. I hope you find some comfort in knowing you’ve dissuaded me from doing something similar.

One question we really haven’t addressed well, and I think it’s an interesting one, though I don’t believe I have the background to fully discuss it is, under these circumstances, when does saying “stop” constitute an actual withdrawl of consent which should be acted upon? Again, I would invite the real docs on here to chime in on this.

Yeah, docs would be interesting because of their greater technical knowledge of the effects of drugs and specific ethical training.

I went through a "let the docs do what they do without looking things up" period, but it bit me mildly a couple times. I figure knowledge isn't a bad thing, also I find knowing exactly what is going on makes me feel more calm and in control. That's a personal thing though.

Let me try one more time with the unconscious bit. Your argument seems to be that since at some point there was a chance or even a likelihood that he was unconscious the legitimacy of the recording is thrown out. My assertion is that because it was known he was physically there then he was a party to the communication per the law, and as the conversation/communication was continued then they accepted him as a party to the communication, even just as potentially. See the DOJ opinion where presence is the major test. The presence test is completely failed in your briefcase analogy, but is sustained for Pat. My response to someone making the claim against Pat would be to request that they show exactly and prove at what points Pat was 100% incapable of hearing the conversation, and furthermore to prove that that overrides the presence test (and remember that hearing is distinct from remembering - you can be so intoxicated that you can't remember what you did the night before and still hear what happened). In this case the burden of proof would definitely be on them because earlier they had explicitly accepted him as a party to the conversation, and remember that the official position of the anesthesiologists is that lack of awareness cannot be guaranteed under sedation, as you well know from experience.

In the case of a deceased participant the major turning point would be when the other participants knew the person was deceased, because that is when the content of the conversation could change. Another interesting legal question - for instance if someone was wearing a wire and was murdered during a meeting what would be the admissibility of the recorded evidence? The Pat question is much more clear because unconsciousness is known to be unexpectedly reversible, so someone talking around him with the knowledge of his presence would know that he had the potential to be a party to the communication. (the law does use the term "party to the communication" and while a two way conversation is easier to prove intent to communicate it is probably not necessary, at least in private or semi-private spaces).

Is there anyone else here who will chime in? BTW this is the last time I will clarify my position so others can quit cursing me out under their breath and asking if someone would please render him unconscious...

What caused Pat distress is the realization of what happened. If I were Pat I would be sorely tempted to get the doctor's side by just saying "look, I remember screaming and asking you to stop. Quit snow-jobbing and tell me what went down and why, and ideally how we can minimize the chance of it happening again" Then you would hopefully get his side, which would be germane and probably better than my on-and-off tendency to build up a monster in my mind.

I am big on looking things up and understanding what’s going on, beyond the degree it’s reasonable for a doctor to spend time explaining it to me. But there's that dangerous little area between ‘knowing very little and just putting faith in the doctor’ and ‘having complete knowledge, such that you can judge what’s being done to you,’ commonly referred to as ‘a little knowledge can be dangerous.’ In my case, I would never obtain enough information to question the doctors’ judgement and in fact, much of their judgement is based on experience, of which I have none in this area.

I really don’t think the legality of the recording is the most important issue. Even if it was obtained illegally, it would still be admissible in a civil proceeding, I believe. But to address your point, I’m not claiming that the entire recording was illegitimate, only the parts where he wasn’t conscious. Where he could either hear or speak (you’re right, it might be difficult to prove he couldn’t hear, though I’m sure medically it can be shown when someone is under a certain degree of sedation, they can’t hear), the recording was legal in that state. Here’s a twist: If mere bodily presence is all that’s required to be ‘a party to a conversation’, what would be your position of hooking a recording device to a baby and placing the baby in the room where the conversation was taking place? Was the baby ‘a party to the conversation’ by it’s physical presence, even though it had no ability to understand or participate in the conversation? I realize that understanding a conversation isn’t necessary, as a foreign speaking person’s presence would still be considered adequate to meet the requirement, but at what point between active participant and dead is the line? I guess we could ask the same question if the person was completely deaf and unable to read lips, were they ‘a party’ to the conversation?

As for the possibility of Pat regaining consciousness, there’s no doubt that when he was conscious, the recording was legal. The question is, when he was unconscious, does it mean he was still ‘a party’ to the conversation?

In the case of the deceased person, I’m not talking about when the others knew he died. I’m asking if the mere presence of a body (dead being one step away from unconscious) makes them ‘a party’ to the conversation, just like the baby situation I just raised.

I’m not sure why anyone would be cursing you under their breath. The three of us, and previously a few others, are having a respectable discussion, attempting to parse out important, but subtle details of a complicated issue. Anyone who finds this exchange troubling can ignore it. I welcome your further thoughts on this matter.

There’s a somewhat similar case that’s been in the news and I tried to start a thread about it, but the thread was trashed.

I don’t want to speak for Pat’s doctor, but I believe the doctors’ position would be: In order to prevent having to put all patients under deep anesthesia, something which has it’s own side-effects, patients are given conscious sedation. Sometimes they awaken during the procedure and we give them additional sedative. We also always give an amnesiac agent so the patient doesn’t experience any distress after the procedure.

I personally have had at least four colonoscopies and have awakened during at least two, maybe three of them. As I said, I’m sure I was experiencing pain during one of them, based on them telling me to hold still and them holding me, but I don’t recall the pain at all.

@Moliere: is your concern more that they weren’t properly controlling his pain, or that they didn’t stop when he said ‘stop,’ in his altered state?

I’ll ask you the same question I asked Pat: What would you have wanted them to do If you briefly awakened, were in pain and told them to stop, although they hadn’t completed the procedure? Assume that you didn’t record the exchange and that upon regaining consciousness, you had no recollection of pain or distress?

To me, the question of when/if consent was actually withdrawn, is very interesting. I'm sure we are all personally informed of where that line is based on our own experiences with consent and possible consent violations, or acts in absence of consent.

I certainly wouldn't insist that anyone else do things the way I would. For various reasons (including drug reactions), when I finally need to do the colonoscopy I will be fully conscious (yes, I have coping strategies for discomfort that I've used for pain before). To be completely comfortable in that or other situations I would have to know that my 'no' would be respected if it got to a hard no, though I do a lot of finding out about stuff beforehand to make sure I'm comfortable with what is going on. Others are not this way - I know several people who have had the attitude "just make sure I don't remember anything" for various surgeries, even when discussing them beforehand (when I was more in a "oh wow, this is cool...look at this...).

I suppose ideally the question would be a prenegotiated thing, similar to what is done in BDSM to lay out "if this happens then do this". It sounds ridiculous on some level, but a safeword sort of thing could be a way to ensure that it is a more reasoned response. I remember seeing a suggestion of essentially a safeword in a book on childbirth and childbirth support for when the mother doesn't want drugs to signal to the partner that "yes, I really do want them now" - though having been there through a childbirth I'm not sure if that would be a viable strategy in practice, nor that I would hold off on requesting anesthesia for her if asked directly by her (no matter what "the deal" was) because I don't like seeing someone I love in distress. OTOH of course I might be pissed if I found out that she okayed a bunch of stuff I hadn't if I was being treated for something and went unconscious for some reason, so I guess I'm not very good at consistency here.

Regarding the edge cases: Dropping a recorder on a corpse in a morgue would likely be struck down - no one would expect the condition of a dead body to change at any time to where they could participate, and indeed their status is different from live people. Baby would be an argument for the courts depending on a lot of things, likely a great deal of time would be devoted to the agency of the baby (did it turn the recorder on? Did it go in the room of its own volition?) Using the baby to - oh, can't remember the term now as it's late, but it is the one that means almost fraudulently convince someone that they are alone and their conversation is not being overheard - would likely be frowned on by the courts. For someone who experienced a temporary change in state of consciousness I believe the court would likely side with them in recording because they were not hiding their presence and the other parties to the communication cannot definitively say when the person is or is not listening, yet they still make the choice to speak. Similar to how speaking in a foreign language is not protected even if it is highly likely that the recording party to the conversation is not able to understand the message. Yeah, again not exact but look at the general trends of the rulings.

In the last post my biggest concern was that they did not appear to be following through in their duty to control Pat's pain as much as possible. Setting aside arguments of withdrawal of consent (I am prepared to concede that it is a grey area), an agreement to control Pat's pain was a part of the deal that they entered into, therefore the doctor has a duty to use reasonable methods to control Pat's pain.

I've had this done twice. The first time, I actually woke up in the middle of it--not completely but enough to know what was going on and see what the doctor was seeing on the monitor. I did not feel a thing, no pain, no discomfort--rather, I remember laying there thinking "So that's what it looks like up in there, this is fascinating!" I then went back to sleep and woke up later, it was over, that was that.

Five years later they did it again and I told them about this and asked "Am I going to wake up again this time?" The doctor said "No, last time we were using a different drug to put you to sleep and we've since decided to no longer use that one." And this time I slept right through it.

One other funny thing about this: The first time I did this there was a radio in the procedure room tuned to the local rock station. The nurse asked me "Do you mind if we have that on?" and I told her "No, not a problem." They told me "OK roll over on your side, we're going to put you to sleep now" and gave me the anesthesia and the last thing I remember before I was out was, the music on the radio was The Doors doing "Back Door Man". How appropriate!

I had the same thing happen to me, the first time I even watched as they removed two pulupets and I could feel it as they did it. The next time out cold, woke up and didn't know a thing.