A Rectum, a Finger, and a Lawsuit in New York
Some cases are medical. Some are legal. Some, unfortunately, end up being both. New York State's Supreme Court is poised to consider the double-sided case of Brian Persaud, a 38-year-old construction worker who has reportedly sued a New York hospital for performing a rectal exam that he says he didn't want.
After receiving a head injury, Persaud was taken to the emergency room at New York-Presbyterian Hospital/Weill Cornell Medical Center, where ER docs conducted a work-up. The New York Times's blog City Room reports:
According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury. He adamantly objected to the procedure, he said, but was held down as he begged, "Please don't do that." As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth.
After Mr. Persaud regained consciousness, he was arrested, then taken—still in his hospital gown—to be booked on a misdemeanor assault charge. Gerrard M. Marrone, who was Mr. Persaud's lawyer, got the criminal charges dropped, then helped Mr. Persaud file a civil lawsuit against the hospital.
I don't claim to know what the court should decide—heck, all I know about the case is what I've read online (here's another news report about it). But I can certainly sympathize with any patient who feels that a doctor ignored a request. I'd like to think that I can ask any doctor why a particular test or procedure is necessary and count on getting an explanation that will enable me to make a rational decision to agree to it. In fact, I once fired a surgeon—or maybe he fired me—when he failed that test of explanation. But a patient in the ER can't necessarily walk out the way I did. That's why good doctor-patient communication is so important.
(Disclosures: The blogger is a friend of mine, and a relative is attending Weill Cornell. I have no inside information about the case.)
Tags: doctors | patients | medical quality | patient safety
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Reader Comments
Why he should sue
No doctor has the right to touch a patient in any way without the patient's express permission. There are stipulations to provide all reasonable care for when a patient is incapable of giving consent, but based on the report, the doctors, and all those who were involved with this, are absolutely guilty of criminal assault and battery and should be immediately arrested. Even if the patient had a head injury and the doctors believed he was incapable of making an 'informed decision', if he was otherwise lucid and non-combative until told of this procedure, it can't be legally assumed he was incapable of making a lucid decision regarding his care because apparent lucidity indicates control of one's mental faculties and thus no surrender of the right to consent to, or refuse, an invasive medical procedure. The doctors (and nurses) involved were certainly concerned about his health, but they did not have to perform that kind of an exam to determine the presence of a spinal injury. So not only was the exam unnecessary, so were the rather high-handed tactics to keep him under control. Based on that, the question I have is: What were all of the circumstances and do they jibe with the patient's recollection? Having worked in an emergency department, I know that sometimes what a patient thinks happened and what actually happened can significantly differ.
A solution
Sure. When the next head injured patient comes in, we should sit down and have a nice discussion about the risks and benefits, and alternatives of a rectal exam. We can show them pictures of the rectal anatomy, and explain why it is important. If they refuse, we can perform an extended psychiatric evaluation to dtermine their decisionmaking competence. We can even consult the hospital legal department and submit a review to the ethics comittee.
Then we can attach the ethics review decision to their toe tag in the morgue, which is where they ended up after the bleeding in their head, which initially manifested itself as a bad attitude and confusion, progressed to put them in a coma and eventually shut down their ability to breathe.
Then we can read about lawsuits against "negligent" ER doctors and hospitals that missed important neurologic injuries, placed urinary catheters into the abdominal cavity instead of the bladder, and allowed people die of internal hemorrhage because the medicolegal system in the United States ends up turning potentially life/limb saving emergencies into handwringing exercises on the part of doctors afraid of lawsuits.
Thoughts
I do not know the details of this case either, and when it comes to medicine, details are everything. But as an ED physician, I certainly see the physician side.
He presented for a HEAD INJURY! i.e. 'maybe there is a concern that he is not making appropriate decisions because their is an injury to his brain clouding his judgement'. He further appears to have been so ill he required intubation, usually a bad sign.
People do not act rationally when they are injured/impared/have certain illnesses which cloud their judgement (remember he had a head injury!). If we have ANY reasonable suspicion (I realize there is a can of worms in the statement 'reasonable', but we have to work with something in life) that a patient requires urgent medical attention or they might suffer further injury to 'life or limb', and judgement appears to be impaired, we will override a patient's wishes until judgement improves.
Further, 'good' doctor-patient relations may not always be possible in some of these scenarios (though again ususally they can be improved)... Say you want to kill yourself because you are depressed, you might not like that I try to stop you (especially if I need to do something potentially invasive). Yet your depression is clouding your judgement and were you not depressed you might not want to kill yourself. I must therefore deem you incompetent until you are competent.
Arresting a patient seems a little extreme to me, I agree. And yet I also know that more than 50% of my colleagues (ED docs AND ED nurses) will be injured at least once by a violent patient over the course of our career. How many of you work in professions with similar injury statistics to that? I have seen colleagues hospitalized themselves from violent patients, make no mistake about it.
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