Two surgical nurses, their OR colleagues and their hospital should face trial for pranks played on an employee as he underwent surgery at the facility, a Texas appeals court has ruled.

Chauncey Drewery, a surgical tech at Metroplex Adventist Hospital in Killeen, Texas, checked in to the hospital for a tonsillectomy. Upon emerging from general anesthesia, however, he discovered that Barbara Wiedebusch, RN, and Kristien Williams, RN, co-workers who'd staffed the case, had applied pink nail polish to his fingers and toes while he was unconscious.

They'd also written "Barb was here" and "Kris was here" on the soles of his feet and taped up his thumb to mock what court records described as his "very private, but embarrassing habit" of sucking it. After Mr. Drewery returned to work, the pair allegedly continued to tease him about the incident and spread misleading rumors about his sexual orientation, to the point that he left the hospital.

In April 2009, Mr. Drewery sued Ms. Wiedebusch and Ms. Williams for assault and intentional infliction of emotional distress over their pranks and taunts. His lawsuit accused surgical tech Betty Thorp, RN, and anesthesia provider Warren Voegele, CRNA, who assisted in the case, of aiding and abetting the 2 nurses by failing to intervene to stop the pranks.

The suit also named the hospital and its parent company, Adventist Health System, since the surgical staffers had been acting as their employees and the administrators had failed to respond to Mr. Drewery's complaints, to acknowledge the nurses' wrongdoing and to assign punishment, all of which fostered a hostile work environment, the plaintiff alleges.

The defendants requested that the case be dismissed, arguing that it lacked the medical expert reports necessary for healthcare liability claims to proceed. While a county trial court granted this request, a state appeals court reversed that decision and sent the case back to the trial court.

In its ruling, issued May 20, the appeals court agrees with Mr. Drewery's contention that his case is not a healthcare liability claim, even though it originated in a hospital, and therefore doesn't require the filing of experts' reports.

The pranks "were extreme and outrageous, in that all Defendants were in positions that required them to provide medical care and treatment" to a patient who "was under general anesthesia and muscular paralysis and was physically incapable of defending himself against this assault committed by the very professionals charged with protecting him from these horrific actions," the court wrote.

However, the ruling continued, "Of paramount importance is the fact that Drewery did not plead damages based on any physical injury resulting from a defendant's provision of medical treatment, lack of treatment, or other departure"

Attorney J. Stephen Dillawn of Austin, who represented Ms. Wiedebusch and Ms. Williams, said his clients were considering appealing the ruling to the state's Supreme Court on grounds it was incorrectly decided. An attorney for the hospital, Ms. Thorp and Mr. Voegele declined comment.

Allison Spruill, Mr. Drewery's attorney, said she found the ruling "entirely consistent" with earlier Supreme Court rulings, adding that the appeals court's ruling "sends a clear message that health care providers' 'pranks' in the operating room and in the workplace can have very serious repercussions, even if those actions do not involve professional negligence related to a medical or surgical procedure."

David Bernard