In my professional opinion, the cell phone recording of a colonoscopy by someone asleep on the operating table was illegal under Virginia law, and should not have been considered by the jury.
The trial court admitted the recording pursuant to this statute:
“It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication ...” Virginia Code §19.2-62(B)(2). [Emphasis added.]
My contention is that the patient was not a “party” to the conversation among medical staff. He could not possibly have been a party when he was under anesthesia and oblivious to everything going on around him.
If the Virginia legislature had intended the mere physical presence of a person doing the recording to be sufficient to legitimize their recorded evidence, they would have said so. Here, by utilizing the word “party,” the legislature clearly and unambiguously required more than simply being in the same room. It required active involvement, or -- at the very least -- the ability to participate in the dialogue being recorded.
Courts are required to adopt the usual and customary meaning of words in a statute. Applying that rule of construction here, you cannot be a party to something if you are oblivious to it and, physically and mentally, totally incapable of participating.
I firmly believe the jury award should be thrown out. The trial court committed reversible error by admitting into evidence a cell phone recording made a patient who was unconscious at the time the recording was made.