Sean O’Sullivan

The News Journal

A Dover man who underwent a colonoscopy awoke after the procedure to find he was wearing pink women's underwear, according to a lawsuit.

Plaintiff Andrew Walls, 32, was not pleased, or amused, and this month filed a civil suit in New Castle County Superior Court against the Delaware Surgery Center in Dover seeking damages for intentional infliction of emotional distress.

"The defendant's extreme and outrageous conduct went beyond all possible bounds of decency," wrote attorney Gary Nitsche in the complaint on behalf of Walls, who was employed at the center at the time.

Delaware Surgery Director Jennifer Anderson declined comment Wednesday saying, "We just found out about this yesterday afternoon."

The suit also names Eden Hill Surgical Group of Dover, but according to someone who answered a phone number for that business, the practice has since dissolved.

In court papers, Nitsche claimed that as a result of the "severe emotional stress" his client suffered mental anguish, lost wages and loss of earning capacity and is due compensation.

According to the complaint, Walls went to the Delaware Surgery Center on Banning Street on Oct. 12, 2012, for a colonoscopy and as part of the procedure was placed under anesthesia.

"When the plaintiff recovered from the effects of the anesthesia administered by defendants, he awoke to realize that while he was unconscious pink women's underwear had been placed on his body," according to the suit. "When the plaintiff initially presented for his colonoscopy he had not been wearing pink women's underwear and at no time did the plaintiff voluntarily, knowingly or intentionally place the pink women's underwear upon himself."

The suit offers no other details and does not offer any possible explanations why someone at the surgical center would put pink underwear on Walls beyond a general intent to embarrass or harass him.

Nitsche declined comment Wednesday, saying the complaint speaks for itself.

Attorney Benjamin A. Schwartz, who is not associated with the lawsuit but blogged about it, said he was stunned by the "off the wall" allegations in the suit, but said it was filed by a credible plaintiffs' attorney so the charges should be taken seriously.

"The question I have is how (as a defendant) do you let this become a lawsuit?" said Schwartz. He noted that the suit was filed on Oct. 10, just before the two-year statute of limitations ran out so one could assume the plaintiff approached the defendants about resolving the matter before a suit was filed.

"How do you not settle this case and let it get out in the community?" Schwartz asked. "This is the type of thing that, if it is true, you want to settle it and get a confidentiality agreement."

But, Schwartz said, he does not know the facts of the case beyond what is in the lawsuit.

On the other side, Schwartz said to win damages in a case like this the plaintiff will have to show an actual financial loss. This isn't a case where there is a star baseball pitcher whose arm is broken by a negligent act and the financial loss from the injury is clear and definable, he said.

The plaintiff will have to prove some kind of functional impairment as a result of this incident to recover damages, he said.

Contact Sean O'Sullivan at (302) 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan