Eye On Olympia

While you were sleeping…

It was wrong for a dentist's insurance company to refuse to defend him after a practical joke – photographing an unconscious patient with fake boar tusks protruding from her mouth – turned into a lawsuit.

So said the state Supreme Court Thursday, ruling that Fireman's Fund Insurance Company should have provided legal help when the Tina Alberts, an employee and patient, sued Auburn oral surgeon Robert C. Woo.

Because state law defines dentistry so broadly, the simple fact that Woo's acts took place as part of his dental practice triggers the professional liability part of his policy, Justice Mary Fairhurst wrote for the 5-4 majority.

In a 22-page dissent, Justice Jim Johnson ripped the decision, calling Woo's behavior "obnoxious", "crass" and a "grotesque invasion of privacy."

"Just because Woo is a dentist," Johnson wrote," does not mean that every act he perpetrates in his office is dentistry."

Justice Charles Johnson limited himself to a two-page dissent, saying "Even under the most liberal construction, the complaint's allegations are not conceivably covered."

An attorney for Dr. Woo, Richard Kilpatrick, said that the joke was the idea of Woo and three female surgical assistants. Woo is in fact "an exceedingly nice guy" who's being pilloried for a joke gone awry, he said.

"This guy was not a jackass," Kilpatrick said. "He did a jackass-ish act, but that's what you have insurance for."

The cases dates back to 1999, when Woo had agreed to replace two baby teeth with implants in the mouth of Alberts, one of his longtime dental surgical assistants.

The procedure required him to extract the teeth and install two temporary spacers, known as "flippers."

Alberts' family raised potbellied pigs, and she apparently spoke about the pets often in the office. As a joke, Woo ordered an extra set of temporary bridges shaped like boar tusks.

"While Alberts was under anesthesia, Woo and his staff removed Alberts' oxygen mask, inserted the boar tusk flippers in her mouth and took photographs of her, some with her eyes pried open," reads a statement of the case written by Fairhurst. Then the team placed the normal ones in Albert's mouth.

During an office birthday celebration for Alberts a month later, staffers handed her gift-wrapped present – the tusks – as well as an envelope containing her photo, eyes open and tusks sticking out of her mouth.

Alberts reportedly assisted with a scheduled surgery, then, in tears, went home and never returned to the job.

"She was a little more vulnerable underneath than anybody knew," said Kilpatrick.

She filed a lawsuit against Woo, alleging "outrage, battery, invasion of privacy, false light, public disclosure of private acts, nonpayment of overtime wages, retaliation for requesting payment of overtime wages, medical negligence, lack of informed consent and negligent infliction of emotional distress."

Kilpatrick said there's a critical fact that many observers miss about this case: that the joke was originally going to take place while Alberts was awake. But at the last moment, he said, she opted for general anesthesia instead of local.

"They were gonna pop them on, show her in the mirror, show her and there's the joke," he said. "What makes this really icky is she's totally out of it."

Woo's insurance company, Fireman's Fund, refused to defend him against the lawsuit, saying that the Alberts' allegations had nothing to do with dentistry. On the eve of trial, Woo settled for $250,000.

He then sued his insurer for not defending him.

A King County jury sided with Woo, saying that the insurance company failed to act in good faith and violated the state's Consumer Protection Act. The insurer was ordered to pay Woo the $250,000, plus attorney's fees, plus damages of $750,000.

An appeals court overruled that and threw Woo's lawsuit out, ruling that "no reasonable person could believe that a dentist would diagnose or treat a dental problem by placing boar tusks in the mouth" and photographing the patient.

But that's irrelevant, Fairhurst wrote for the majority Thursday. At issue, she said, is whether the insurer had a duty to defend the dentist under the language in his policy and state law.

"We conclude that Fireman's had a duty to defend under Woo's professional liability provision because the insertion of boar tusk flippers in Alberts' mouth conceivably fell within the policy's broad definition of the practice of dentistry," Fairhurst wrote.

Johnson also blasted the practical result of the decision: that Woo ended up with $750,000 in damages to Alberts' $250,000 settlement.

"Today's majority decision rewards Dr. Woo's obnoxious behavior and allows him to profit handsomely" Johnson wrote.




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