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Forced Medical Examinations:

A fascinating article in the New York Times City Room blog:

Brian Persaud ... asserts that he was forced to undergo a rectal examination after sustaining a head injury .... Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.

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....

There's much more interesting factual detail, but not the thing I most want -- a link to the relevant court papers (such as the Complaint and any non-one-liner decisions by the judge). My sense, though, is that the hospital has only one possible defense: "It is not always clear what is the patient's capacity to make decisions, especially if the doctor suspects a head injury."

The general rule is that touching someone (except in relatively de minimis ways, which this surely wasn't) without their consent is tortious battery. That's true even if one has wonderful medical motives; the doctor is supposed to get the patient's informed consent, and if he doesn't then the doctor is guilty of battery even if he saved the patient's life. There are exceptions, for instance related to compulsory immunizations, but they are generally aimed at protecting the health of others. Someone who's mentally competent may even refuse lifesaving treatment when that's clear to lead to his death; the assisted suicide debate focuses on whether others can provide him with deadly substances or tools, but it's generally well-established that someone who's mentally competent may demand that, for instance, life support be removed.

But sometimes, of course, the consent is unavailable, for instance because the patient is unconscious. And sometimes the patient may be found to be legally incapable of meaningful consent, for instance if he's insane. So the interesting legal (and moral) question here is: When there's suspicion that the patient may be incapable of consent (for instance, because of head trauma), and there's the risk of irreversible harm if the hospital takes more time to figure things out -- including if the hospital even takes more time to figure out whether the patient is indeed suffering from head trauma that might make him delusional -- may the hospital just go with what doctors find reasonable (and what most patients would usually accept)? I don't know the answer to that question, but I thought I'd pass it along.

There are also of course less broadly interesting but potentially dispositive factual questions as well -- for instance, if there were simple, quick, and effective alternatives that the doctors could have suggested instead, or if there was solid evidence that Persaud was indeed delusional, or if there was no real reason to think he was suffering from head trauma (other than his seemingly excessive reaction to an admittedly unpleasant but generally not horrible and possibly lifesaving procedure).

Lewis Maskell (mail):
From the description (and accepting for the moment that it is true) I believe in the UK the actions of the doctors in this case would contravene UK medical practice and policies, precisely because the patient has to give consent. Fairly simple.

Of course, I accept the situation may have been quite different from what is claimed, and I imagine that will be sorted out in the court.
1.16.2008 7:34pm
Lewis Maskell (mail):
Thinking a little further - in the UK alot of these procedures got formalised over the issue of whether or not doctors could forcibly give blood to patients who were Jehovah's Witnesses. As far as adult patients are concerned, if they refuse consent then that is it. The situation is more complicated as applies to minors obviously, but with adults it is fairly clear.
1.16.2008 7:41pm
KeithK (mail):
My instinct is to side with the patient (although the claims of "extreme anxiety, agitation and depression" seem a little over the top). What I find really offensive about the story is that the hospital actually called the cops and had the guy arrested, presumably for striking the doctor. If the claim is that the guy was not competent to make an informed medical decision I can't see how you could hold him culpable for his actions trying to prevent the exam. If he was competent then almost by definition the doctors were violating his rights.

Fortunately the charges were dropped.
1.16.2008 7:46pm
Bode:
I'm reminded of the mentally ill guy who cut his right hand off with a circular saw ("if thy right hand offend thee, cut it off," which he quite literally did). At the hospital he refused to allow doctors to re-attach the hang, arguing it was possessed by the devil. The hospital ran it through their risk manager, who contacted a judge for advice. Upshot was the hand was not attached and the guy sued the hospital, and lost.

However, I suspect all hospitals are wary of such things. This case does seem pretty absurd, though — especially if this was all done by a resident without escalating it through the hospital administration in a non-life-or-death situation like this.

Here's an article on the circular saw case
1.16.2008 7:56pm
gasman (mail):
The patient now has reason to present himself as having appeared far more oriented, lucid and capable of decision making, than might have then existed on his date of injury. Procedures for rapid assessment of a patient are rote and efficient, and quite indicated. No one really wanted to stick their finger up this man's rectum, but in medicine there are many places that no one wants to stick anything, but best care demands that we do.

There is the necessity for presuming an inplied consent when a patient has questionable ability, or complete incapacity to consent to a proposed line of care. This presumption is based upon the idea that a reasonable person unable to consent, and having no appropriate surrogate designated by durable power of attorney or designated by the state's legislature (e.g. wife, adult child, parent, etc. in some order of succession) would want medical care to commence in a timely manner anyway.

On a practical note, rather than striking someone with his fist, he could have flexed his cheeks sufficiently to prevent the exam and probably make the need for further exam moot.

I will state that with too great a frequency, I see patients paralyzed and intubated for reasons not medically necessary, but to suit the mood of the ER doc, and with even greater frequency (and less skill) the paramedic in the field.
1.16.2008 8:00pm
Thoughtful (mail):
The spine could have been imaged (MR), as the head almost certainly was in a case of trauma sufficient to suspect mental incompetence. Granted, a rectal exam is a lot faster and MUCH less expensive.

In addition, we're not talking about a delusional patient--one who thinks he's Napoleon, for example--we're talking about a guy who has had trauma to the head. If he's having a rational conversation with the doctor--"I need to do a rectal exam to assess your sphincter tone." "I'd rather you not do that." "I must insist; it's very important." "No. Stop. I don't give you my consent!"--that's prima facie evidence of competence. What was his Glasgow score? If his claim is at all accurate, it had to be pretty close to normal, I'd guess. (I'm not saying he couldn't have significant injury. Subdural hematomas may cause symptoms/signs in a delayed fashion, for example. But the question is could he make competent medical decisions. If he's making coherent and responsive statements, that would seem to go a long way toward demonstrating he can.)

Could he have signed out AMA? If so, it would seem to follow he could refuse certain procedures.
1.16.2008 8:10pm
Malvolio:
IANAL (heh-heh-heh), but wouldn't sticking your finger up some guy's poop-chute constitute (at least prima facie) sexual assault? And isn't defending oneself from sexual assault sufficient justification for the use of deadly force?

If it makes the case any clearer -- suppose a ER doc wanted to perform a vaginal exam on a head-trauma victim? Now can the patient/victim/whatever use force, even deadly force, to defend herself?
1.16.2008 8:31pm
SenatorX (mail):
IMO very disturbing. If you have a head injury of any sort you no longer have rights? Many horrible things are done when someone thinks they know what is best for others. The authoritarian stance of the medical community is unfortunately all too common though.

I wonder their justification for having him arrested afterwards(and it matters not one bit they dropped the charges). I mean on one hand you are saying he wasn't in his right mind which is why you forced the rectal probe but on the other he is responsible for his actions of resistance. To me this indicates where the mindset was of the medical authorities at that time.
1.16.2008 9:04pm
Sid (mail) (www):
The hospital appears to be using the force of size in this matter. I am quite certain that the staff attorney was able to explain the legal predicament - the guy was EITHER mentally unable to refuse the exam in which case we should not have had him arrested OR the guy was mentally able to refuse the exam in which case we should not have performed the procedure.

But that is only the law. In the real world, the staff attorney simply advised that the case would drag out long enough for passion to subside and the hospital and doctor could plead regret before the judge and claim that they were only concerned for his well-being and perhaps they erred in this case but their vast experience and yadda yadda and they promise to review procedures on informed consent and staff training as necessary for residents and paying this claim would set a terrible precedent and please accept our apology and whatever.

If the facts are close to what has been reported, the guy should get to choose between several penalties for the doctor and the assisting personnel. Honestly, let him perform a rectal exam on them.
1.16.2008 9:08pm
Ak:
I see we have a crowd of lawyers who has probably never even seen a trauma here today.

Do you seriously think that the ED physician was just SOOOO excited at the prospect of getting his finger in this guy's ass that he just couldn't resist? The rectal gave him an immediate assessment of the man's spinal cord function so he could know if neurosurgery needed to get to work on him posthaste. An emergent MRI, assuming one was available, would take at least a half an hour by which time this gentleman could quite possibly be dead. At which time his family would, of course, sue the hospital and the doctor for failing to diagnose his spine fracture before it killed him.

Trauma patients quite regularly object to the treatment they receive because, shockingly, they have been in a recent trauma and object to being touched or disturbed. I've had quite a few curse at me and tell me to get off them for starting a line they needed. I have never had one say "boy, I sure do wish you'd let me die of hypovolemic shock" after the fact (although apparently that is because I never treated the gentleman in this article).

I think we would all be more than happy to obey the directives if we could separate the lawsuit-happy from normal people (who, in a turn of events that may be shocking to some, are often quite grateful that you didn't listen to the crazy things they said when they were bleeding out). Perhaps some sort of "do not render urgent care without explicit permission" national registry?
1.16.2008 9:23pm
Toby:
Funny how many on this forum seem focussed on the sexuality of their fundaments. Rectal exam is quick, cheap effective. Let him sleep it off and we'll check in the morning leads to potential harm; any bets if the doctor/hospital would be indemnified against them? MRI would take longer and be would be expensive.

And folks talk of rights. How about my right not to pay for his MRI and/or my right to have medical expenses not inflated by his silly infantile focus on his butt.

If he personally, not the health service, will pay for the MRI - let him have that right.

If we can all agree that if he is paralyzed that we will all let him live with what he took for responsibility, and I never have to listen to someone use him to beg for money, let him have that right.

Rights and Responsibilities go to gether. Without the latter, my concern for his rights go way down...
1.16.2008 9:24pm
PeteRR (mail):
I think ER Docs have stuck their fingers up too many rectums, that's why they're so callous towards a patient who undoubtedly had very little experience with hospitals or doctors, and insist that we should all acqiesce to their tender ministrations with the minimum of protest. You double penetrate me(counting the intubation) without my consent and have me arrested in only a hospital gown, I would seriously consider kicking your ass.
1.16.2008 9:48pm
ras (mail):
I'd like to take this opportunity to thank all emergency room docs for being willing, cases like this notwithstanding, to make such difficult calls as best they can, with lives on the line and with information missing or ambiguous.

Those who know they'd never make a mistake can object now.
1.16.2008 10:15pm
Sid (mail) (www):
PeteRR,

Absolutely right.

If we accept absolute medical necessity was the doctor's only motivation, then what was the motivation to have the man arrested after ruling that he was not thinking clearly and to have him carried into the courtroom in his hospital gown.

I have served on a medical malpractice jury. The patient signed a risk waiver. He was a competent individual. We ruled in favor of the physician. That is the US legal system for those of you watching at home.

If this man was mentally unable to refuse treatment, then the hospital has to have a protocol for caring for the patient once the sedation wears off. Some mental health personnel, maybe a patient advocate who could have helped him understand the medical necessity of the foreced treatment.

But the moment they chose to have the patient arrested, the ink began to dry on the rather large check they will now have to hand over to the patient's attorney.

And be damn glad they did not perform this stunt on one of my loved ones.
1.16.2008 10:21pm
Malvolio:
Funny how many on this forum seem focussed on the sexuality of their fundaments.
Because the patient involved seemed to be.

This society, rightly in my opinion, puts a high value on an individual's bodily integrity. That's why rape and battery are considered serious crimes.

Ak and Toby seem to think that because a physician is purportedly in possession of information that the patient doesn't have, information that may (or may not) benefit the patient, that physician can assert some sort of authority over a patient.

Ak, Toby, repeat after me: a physician is a technician, like a car mechanic or a repairman (or a lawyer). His job is to offer his expert opinion and, if asked, to perform some reparative function. That's all. He is not a guardian angel, sent down to Earth to make things right.

Rights and Responsibilities go to gether. Without the latter, my concern for his rights go way down...
Medical errors kill perhaps 100,000 Americans a year. If physicians have all these rights us groundlings don't, I assume they should likewise pay the penalties for all those deaths?
1.16.2008 10:43pm
A. Zarkov (mail):
I once decided that I didn't want to stay in a hospital. I called my family doctor who said it was safe for me to come to his office. When I couldn't get anyone's attention, I got up ripped off all the electrodes and shut down the station. As I was walking out the front door, I got called me back by the front desk, and told I couldn't leave. At that point I told them I was going to call the police and report I was being held against my will. They backed off very quickly. Don't believe this crap that doctors always have your best interests in mind. I have refused or modified my treatment many times, often correcting errors on the part of the doctors or staff.
1.16.2008 10:51pm
TheNewGuy (mail):
You double penetrate me(counting the intubation) without my consent and have me arrested in only a hospital gown, I would seriously consider kicking your ass.

Well... I see the ITGs have checked in.

I am an ER doc, so this is right up my alley. Also, just to get it on the record right from the start, I would never force myself on an awake, appropriate, and otherwise-rational patient who told me "No... I'd rather you didn't do that." There's nothing enjoyable about putting your finger in somebody's rectum... we do it because it gives you quick clinical information that helps guide treatment.

I've done plenty of rectal exams on uncooperative patients. Some were drunk, some demented, some combative... the whole spectrum. They're generally done for one of two reasons in the ER... trauma, and to rule out GI bleed (and sometime to satisfy a surgical consultant). Trauma patients are notoriously uncooperative, frequently angry/unreasonable, often drunk, and usually in need of a thorough workup.

Workups start with a history and physical exam (or AMPLE history and primary/secondary survey in the trauma patient). Until somebody invents the tri-corder, that's what my professional duty and the standard of care require of me (enforced by phalanxes of personal-injury lawyers). In any trauma patient, the buzz-phrase is "fingers and tubes in every orifice." Don't believe me? Google that phrase. It's ATLS dogma.

In a head-injured patient, you're putting them at risk by not assessing their neurologic function...and part of that assessment is a rectal examination to check sphincter tone. Decreased sphincter tone is an ominous finding, and usually means a spinal cord injury (they may also have priapism).

You can also use the rectal exam to check for a high-riding prostate, blood or bone fragments, or other signs of a pelvic fracture (it's highly recommended to do a rectal exam before inserting a urinary catheter, for instance).

In a case like this, it would be a breach of the standard-of-care for the doctor not to strongly consider the possibility of a spinal injury, particularly for an axial-load injury like this one.

Incidently, if you're going to put every one of these incidents under a monday-morning-QB microscope, and overlawyer us ER docs more than we already are, then I suggest you indemnify us for any morbidity resulting from our immediate cessation of treatment in every drunk/combative/head-injured patient who incoherently screams "Ahhhh! Stop!! Aaaaghhh!"

Until you're willing to do that, I'll continue to provide whatever emergency care I think the patient needs... that IS what you're paying me for. I'd much rather be on the stand explaining why I did too much for the patient, rather than too little.
1.16.2008 11:02pm
Waldo (mail):
Much of the physician's argument seems to depend on the need for timely action in order to prevent further injury. If I were on the jury, I'd be curious how long Mr. Persaud waited in the lobby before being seen. If it's any significant amount of time, it would seem the hospital had more reasonable alternatives.
1.16.2008 11:03pm
Thoughtful (mail):
To The New Guy: Welcome.

To Toby and Ak: I *am* a physician, not a lawyer, and as a radiologist of more than two decades experience I am well aware of how long it takes to get an MRI and how expensive it is. You might note I mentioned the expense in my initial post. But the guy clearly wasn't about to die or he would't have been in a position to argue, complain, and otherwise indicate he didn't want the rectal exam. We are NOT talking about the mindless thrashing of the extremely inebriated or severely head-injured patient. We are talking about a guy engaged in dialog with his doctor.

It would be routine if the ER doc thought a spine injury was likely to have obtained a spine CT, now done as part of a routine chest/abd/pelvis CT using newer MDCT models. This is often done in under 5 minutes if the patient comes from the ED with a fuctioning IV, virtually always the case. The CT, which they would be getting anyway, would show spinal canal compromise or spinal fractures impinging on the cord. I mentioned MR intially because I got the impression they might have worried about a pure cord contusion. Do people typically die of these in 30 minutes or less?

If Ak and Toby read my initial point closely, they'll recognize I was not defending the medical judgment of the patient, I was defending his apparent mental competence to claim the right to make that judgment. One doesn't have to be a lawyer to take informed consent and patient autonomy seriously.
1.16.2008 11:19pm
Malvolio:
I've done plenty of rectal exams on uncooperative patients.
How nice for you.

I'll continue to provide whatever emergency care I think the patient needs
You might want to dial back that arrogant tone there a touch.

Look, if you honestly believe is a guy is too drunk, brain-damaged, or just stupid to decline medical treatment, go ahead, give it your best shot. But if he decks you, and he very well might, no calling the cops. Cops are for criminals -- not people who are too sick to know what they're doing and certainly too sick to leave the hospital.
1.16.2008 11:21pm
TheNewGuy (mail):
Much of the physician's argument seems to depend on the need for timely action in order to prevent further injury. If I were on the jury, I'd be curious how long Mr. Persaud waited in the lobby before being seen. If it's any significant amount of time, it would seem the hospital had more reasonable alternatives.

I doubt they left a head-injured patient laying out in waiting room. I'd bet he was boarded, collared (if they were concerned about a spinal injury), and given the ATLS workup.

He might have been a waiting-room case whose neurologic status deteriorated, or otherwise changed. That would get him bumped to the top of the triage stack, and he'd likewise be aggressively treated.

I've paralyzed and intubated head-injured patients before... not for my own convenience, as gasman intimated above, but for their own protection. An incoherent combative patient thrashing around on the bed can easily damage his/her spinal cord, and one of my responsibilities is to keep them from hurting themselves MORE while we're working them up.

Does anybody here doubt, even for a second, that I'd be sued into oblivion if I allowed an incoherent head-injured patient to sever his spinal cord in one of my trauma bays, particularly if I had the ability to prevent that secondary injury, and failed to act?

Which do you folks want? Trauma is my job, and I generally know what the patient needs. Do you really want me to go to court every time a bleeding, head-injured, combative patient screams "no?" That kind of option isn't feasible for the compressed time frame in which we operate.

As a pertinent example, in order to maximize recovery in spinal cord injuries, we use mega-doses of IV steroids... but we only have a few hours to get those steroids started. An MRI alone can take hours to get done and read by a radiologist... not to mention all the other x-rays, CT scans... The last paralyzed spinal cord injury I had was a drunk guy who wasn't discovered by a passerby until it was too late. What if he'd come in a little earlier and said "no?" Do we try to wake up a judge, obtain counsel, and convene a hearing at 2AM on a Saturday night when the clock's ticking?

I'm not sure what some of you are asking for here. I'm already damned if I do, and damned if I don't.
1.16.2008 11:36pm
neurodoc:
This man was awake and aware, able to understand what the examiner proposed to do and make very clear that he did not wish to have it done. If it could be ascertained that he had normal perception of sensory stimuli in his perianogenital or saddle area and in both lower extremities, that he was able to move his lower extremities normally, and that his deep tendon reflexes were normal, I don't know why they thought it necessary to do a rectal exam to rule out a spinal cord injury. (And the examiner might have been able to elicit an "anal wink," thereby reasonably satisfying himself that there was sphincter function without doing a digital rectal exam.)

As part of a truly thorough physical evaluation of someone with a probable myelopathy (dysfunction of the spinal cord), a digital rectal examination would be in order, but not as a "screening" test for a myelopathy in the absence of other signs of spinal cord dysfunction. It must be exceedingly rare, if it ever happens, that the only physical sign of a spinal cord injury is loss of rectal sphincter tone. (I have no experience of acute spinal cord trauma of the sort an emergency room physician might be faced with, but I know what one looks for when the concern is a lower spinal cord problem, e.g., conus medullaris syndrome or an epiconus lesion, and it isn't loss of rectal sphincter tone in isolation.)

I don't know whether this took place on the Upper West Side of Manhattan (Columbia and the New York Neurological Institute) or the Upper East Side (Cornell). Both of those institutions have long histories of excellence in all things neurologic, though. But I imagine it was an emergency room doctor going by the numbers through an established protocol with "rectal exam" part of the checklist, and he was not going to be criticized for failing to be thorough in his assessment of this patient.

(BTW, if it had been a female patient, it would not have been about doing a vaginal exam rather than a rectal one. A rectal exam would still have been the issue if it were a female patient, since it is the rectal exam which might give some neurologic information, if indeed that was needed under the circumstances. I don't know any neurologists who do vaginal exams as part of their neurologic evaluations, at least not ones done in the ordinary course of their duties as physicians.)

Was the bioethicist they quoted correct, when she said, "To successfully demonstrate that the hospital was negligent, Ms. Berlinger said, the plaintiff would have to show that the treatment involved a departure from the 'standard of care,' that the patient was harmed and that the harm resulted from the departure from the standard." The contention is that an intentional tort was committed, not one arising out of "negligence," right? Is there a "standard of care" question as such to be answered? If the consensus opinion of suitably qualified experts is that a rectal exam was medically called for under the circumstances, that doesn't mean that proceeding in the face of the man's objections was non-tortious, does it?
1.16.2008 11:41pm
TheNewGuy (mail):
I've done plenty of rectal exams on uncooperative patients.

How nice for you.


No... actually, it's not that great. It's one of the things I like least about my job.


I'll continue to provide whatever emergency care I think the patient needs

You might want to dial back that arrogant tone there a touch.


Arrogance? I'm sorry it came across that way, but treatment directed towards the patient's medical necessity is what the standard-of-care, my professional ethics, and my fiduciary responsibility require of me. It's also what any court, my state medical licensing board, or my professional college would require of me.

That's not arrogance... trained, professional judgment is my stock-in-trade. Again, it's what they pay me for. There's plenty of legal trouble out there for physicians who choose to do less.
1.16.2008 11:48pm
waitingforgodot:

I am a law student planning a career in bioethics, and I am fascinated by the issues involved here, yet I find myself utterly distracted by a childish diversion. I can't help it, I just have to comment.

Can we please nominate "anal wink" for Word of the Year?
1.17.2008 12:04am
Malvolio:
Arrogance? I'm sorry it came across that way, but treatment directed towards the patient's medical necessity is what the standard-of-care, my professional ethics, and my fiduciary responsibility require of me. It's also what any court, my state medical licensing board, or my professional college would require of me. That's not arrogance... trained, professional judgment is my stock-in-trade.
There are two issues here:

1. Was a particular treatment (or diagnostic measure) necessary? There seems to be a certainly amount of dispute in this case, but even if I were a physician (which I certainly am not), my inclination would be to give the expert on the scene a tremendous amount of deference. As TNG points out, digital exams aren't tremendous fun for anyone, and if someone properly trained and with access to all the available information thinks it's the best plan, I'm willing to go along.

2. Given that it is the best plan, what if the patient still won't give the go-ahead?

That's where we get to arrogance. Barring true incompetence on the part of the patient (which obviously didn't apply -- why would they have called the cops?), it's his call, even if it would result in his death.

So, no, you won't provide whatever emergency care you think the patient needs. You will offer expert advice and then either do what the customer wants or withdraw from the case.
1.17.2008 12:09am
neurodoc:
TheNewGuy, you say, "In any trauma patient, the buzz-phrase is "fingers and tubes in every orifice." Any "trauma patient"? It's been many years since I took Advanced Trauma Life Support at the behest of the US Army and I expect that as a practicing emergency room physician you have expertise that I don't here. But I don't expect that everyone who requires stitches to the head, especially those who did not lose consciousness and complain of nothing other than their obvious wound, gets "fingers and tubes in every orifice."

I am relying on the NYT City Room blog for the "facts," and I see nothing there about the nature of the workplace accident, nor problems other than the head wound itself. It appears that the man was conscious and communicative until they sedated and intubated him. Unless he was clearly encephalopathic (brain not working, so not legally competent) making it difficult to assess and treat him, I wonder about the medical wisdom of sedating him. Surely, mental status is hugely important and once you have knocked him out what is there to say about it other than now "unconscious" or "stuperous" or whatever, which then lose their neurologic significance. (No a good idea to dilate the pupils of head trauma patients either, since then lose pupillarly reflexes as a sign to be followed.)

If someone has been crumped in an auto accident with trauma to the torso or possible trauma to the torso, then by all means check for blood in the gut by doing a quick rectal exam as part of the initial assessment. But if we can isolate on the neurologic, I don't see the reason to do a rectal for the purpose of "r/o spinal cord" injury when the doctor can establish normal sensory, motor and reflex findings.

I appreciate the difference between making critical decisions quickly under a great deal of pressure and in the absence of all the information one might wish to have and dissecting it all from afar after the fact, when the dust has settled. And I appreciate the value of protocols, checklists, guidelines, and the like that are meant to assist the doctor in making the clinical decisions he/she must make. I am questioning, admittedly on the basis of possibly incomplete data, whether this man needed the rectal exam they thought he needed to rule out a spinal cord injury.
1.17.2008 12:16am
TheNewGuy (mail):
So, no, you won't provide whatever emergency care you think the patient needs. You will offer expert advice and then either do what the customer wants or withdraw from the case.

You're quite correct... I do offer expert advice, and I do walk away when I'm told... but only in a mentally competent patient. If there's any question in my mind about their competency, I'll err on the side of caring for them every single time (and if they're that pissed off about it, they can sue me for "wrongful life" later). I've had competent people with acute, life-threatening conditions walk out of my ER many times over the years. I've physically gotten down on one knee and begged some of them to stay too... and they still walked. More than one has come back dead several hours or days later.

I'm not one of those guys who tells the nurse "have the guy sign an AMA form and get him the hell out of my ER." I try to have a conversation with them about what they're doing. Most times they don't want to hear it... but I do try.

As for withdrawing from the case, no dice. I'm the only doc on-shift at my facility... there is nobody else.
1.17.2008 12:21am
neurodoc:
Can we please nominate "anal wink" for Word of the Year?
With a pin and a willing partner, you can see one for yourself. (And while you are there, do be sure that sensibility has not been lost in cutaneous radicular fields S3, S4, and S5.)

And if you do go into bioethics, I would tell you always to get straight the medical facts before you opine on any particular case. I am appalled at those who go on opining about cases when they are very misinformed about the most fundamental and critical facts. (See David Kopel's recent post about the Golubchuck case in Canada and what those two bioethicists had to say about it.)
1.17.2008 12:25am
SenatorX (mail):
I'm sorry TheNewGuy but before you went into the explanations of why you have to do it I thought you admitted what they did was wrong. What exactly is the method of determining if a patient is in their right mind enough to deny treatment? Did they offer him a waiver or something? There didn't appear to be anyway for this man to refuse.

the plaintiff would have to show that the treatment involved a departure from the 'standard of care,' that the patient was harmed and that the harm resulted from the departure from the standard." neurodoc

Ok assuming this is the legal question (which I have no reason to doubt) did they? Surely these words 'standard of care', 'harmed', and 'departure from the standard' are not decided arbitrarily?

Standard of care - TheNewGuy said "I am an ER doc, so this is right up my alley. Also, just to get it on the record right from the start, I would never force myself on an awake, appropriate, and otherwise-rational patient who told me "No... I'd rather you didn't do that."

It sounds like he is aware of some sort of standard. An empirical condition where he has to make the call on if it is OK to do something to a patient against their consent. What exactly could this patient have done to avoid getting probed (other than not show up in the first place)?

Harmed - Who determines harm? Regardless of Toby's brilliant "get over it" I assume this term is used broadly enough to include non-physical damage? We don't tell rape victims to get over it.

'departure from the standard' - Has anyone with a head wound ever been able to refuse treatment at this hospital? If so what was different about this case?

In any case because they arrested him right after we know they believed he was in control of himself right? Is it standard procedure to arrest patients that are out of their mind and not able to make decisions for themselves?
1.17.2008 12:27am
TheNewGuy (mail):
TheNewGuy, you say, "In any trauma patient, the buzz-phrase is "fingers and tubes in every orifice." Any "trauma patient"? It's been many years since I took Advanced Trauma Life Support at the behest of the US Army and I expect that as a practicing emergency room physician you have expertise that I don't here. But I don't expect that everyone who requires stitches to the head, especially those who did not lose consciousness and complain of nothing other than their obvious wound, gets "fingers and tubes in every orifice."

The clinical details at the referenced website are pretty sketchy... so I can't at this point say whether the ER doc really screwed the pooch, or gratuitously engaged in punitive medicine on an uncooperative patient.

In terms of protocols on multi-trauma patients, particularly if there's question of a head injury, you end up doing quite a bit more than you would on an awake/alert/GCS-15 patient. A bit of veterinary medicine, if you will, since your history is of questionable reliability, the patient's perception of pain may be altered, and they may have distracting injury. In short, their judgment of what hurts/doesn't hurt is in question.

It's analogous to caring for an intoxicated person. You end with a lower threshold to investigate, and end up doing more than you otherwise would on an awake/alert person, precisely because their history and physical exam findings are unreliable.
1.17.2008 12:31am
SenatorX (mail):
Can we please nominate "anal wink" for Word of the Year?

Heh, yes I too have not heard this phrase before. My first thought was a saucy winking anus. Here's looking at you kid.

Also ""I am an ER doc, so this is right up my alley" I thought was a pretty funny way to start that comment considering the subject.
1.17.2008 12:38am
TheNewGuy (mail):
It sounds like he is aware of some sort of standard. An empirical condition where he has to make the call on if it is OK to do something to a patient against their consent. What exactly could this patient have done to avoid getting probed (other than not show up in the first place)?

To refuse care, you generally want a couple of things.

Neurologically-intact.
Alert and oriented x3
Able to understand risks, benefits, alternatives
Not suicidal/homicidal

Part of this is clinical gestalt... you can usually tell when a person isn't thinking straight. I'll sometimes ask somebody to do basic calculations in their head (eg. serial 7's), or ask them to explain the meaning of a parable or saying ("What does 'the grass is always greener on the other side of the fence' mean?").

Some of this stuff is a judgment call. When in doubt, you're generally better off doing more than you have to.

If a patient is mentally sharp, 100%, and doesn't want something done, they're free to go. How could I lay claim to respecting patient choice, or claim to have a patient-centered philosophy of medicine if I practiced otherwise?

It's their body... and a competent patient can absolutely refuse anything I've got.
1.17.2008 12:46am
TheNewGuy (mail):
Can we please nominate "anal wink" for Word of the Year?

Heh, yes I too have not heard this phrase before. My first thought was a saucy winking anus. Here's looking at you kid.

Also ""I am an ER doc, so this is right up my alley" I thought was a pretty funny way to start that comment considering the subject.


Ahahah... you're a twisted man, Sir... you'd fit right in with my night shift crew.
1.17.2008 12:48am
Houston Lawyer:
I'd just like to note that doctors make poor clients. Too little experience in being told off and having to live with it.
1.17.2008 12:55am
neurodoc:
If someone can answer appropriately, "What does 'the grass is always greener on the other side of the fence' mean?," then they are probably with it enough for purposes of getting informed consent. But it is not a particular good question to ask for these purposes, since people often don't understand such abstractions for a variety of reasons. What one is usually looking for is whether they come back with something weirdly concrete (e.g., "It rains more over there."), hinting at a thought disordere, like schizophrenia. The arithmetic caluculations are better for your purposes in assessing an individual's cognitive capacities.

From a legal standpoint, I don't know about "Able to understand risks, benefits, alternatives," and wonder what others think. If they seem to be mentally intact, not manifestly delusional, but making what from your perspective seems a stupid, even irrational choice, does that mean you are legally OK to go ahead notwithstanding their clearly expressed denial of permission? (I think they should have gone ahead and sewed the guy's hand back on after he intentionally severed it, but that's because he was clearly not mentally competent.)

In the instant case, someone is going to have to decide both the law and the facts. Even if the plaintiff is OK on the law, how much credence and sympathy do you think he will get with the injury he claims (his life ruined by the experience, unable to work ever since) and under the circumstances? Even in Brooklyn, famous for very pro-plaintiff juries, I doubt this plaintiff will reap any great windfall. (This is very, very different from the Luima{sp?} case, with the forcible sodomy of a man by police officers using a broomstick.)
1.17.2008 1:13am
neurodoc:
I'd just like to note that doctors make poor clients. Too little experience in being told off and having to live with it.
Would it surprise you to learn that many doctors would prefer not to have attorneys for patients?
1.17.2008 1:15am
neurodoc:
BTW, I fancy that I am a better client than patient. Usually best to be neither of those, but if forced to chose, I think the former preferable to the latter. (My late father told me a number of times to be very careful in chosing lawyers and accountants, because one would have to live with their mistakes, whereas doctors bury theirs. Meant to be sardonic, of course.)
1.17.2008 1:19am
John Herbison (mail):
The linked article talks about standard of care, as do many of the commenters above. Without having read the pleadings, though, I wonder whether this is actually a standard of care (negligence) case, or whether it is a medical battery (unconsented touching) case. I suspect it is the latter.
1.17.2008 1:20am
wuzzagrunt (mail):
TNG wrote:

The clinical details at the referenced website are pretty sketchy... so I can't at this point say whether the ER doc really screwed the pooch, or gratuitously engaged in punitive medicine on an uncooperative patient.

Punitive medicine? They have that now?

So I wonder what you do with a guy like me. My wife swears that I frequently respond to questions in my sleep. According to her, if I appear engaged, articulate, and glib she knows I'm out of it. If my responses are monosyllabic, and my general demeanor one of testiness, she knows I'm alert.

I guess I'd be screwed either way.
1.17.2008 1:40am
TheNewGuy (mail):
Punitive medicine? They have that now?


They had it a lot more years ago, unofficially of course, because it's an ethically questionable practice, and very much discouraged these days. I suspect they were NOT trying to do that to the plaintiff. I say that because of one simple fact: they sedated him before paralyzing/intubating him. If the doc was really pissed off at being punched, and trying to "teach that son-of-a-bitch a lesson," he'd have paralyzed the patient and omitted the sedative.

There's few things more unpleasant than iatrogenic paralysis via neuromuscular blockade, followed by a host of interventions that you're able to see, hear, feel, taste, and touch... but you cannot move,protest, or even breathe. Everyone's heard horror stories about people waking up during surgery, unable to move, cry out, or react to the incredible pain they're feeling... this is exactly the result of paralysis without sedation.

The patient is lucky he only punched a physician... you can't imagine what happens if you hurt a member of the immortal sisterhood (TM) of ER nurses. Those tough ole' battle-axe nurses are angels of mercy... until you assault one.
1.17.2008 3:19am
Mike G in Corvallis (mail):
It might have been that the patient had a very good reason for not wanting the rectal exam. Might he have been the victim of a prior sexual assault? He might not have wanted to discuss the issue with the attending physician and a roomful of other people.

Would the newspaper report this aspect of the case if it were true, and if they were aware of it? I can see that the New York Times might have any of several reasons to omit this from their reporting.
1.17.2008 3:35am
John Quincy Public:
TheNewGuy has been refreshingly and appalingly honest with this site on the nature of his decisions and how he is informed on them by the trade associations for his industry.

He forthrightly declared that his choices are to be either sued or "err" on the side of treatment. Therefore he may risk that his malpractice insurance premiums will increase as a result of a judgement against him or he may "err".

Now, in fairness, the sad state of the legal system guarantees that his premiums will rise. Denying this as an option and denying himself a differing career he chooses to "err".

In erring on the side of treatment he has explicitly admitted that he knowingly has made mistakes in his assessment of the patients mental competency; and this in regards to forced anal intrusion by his fingers. When competency is in place, and consent isn't, then this is plainly rape.

Therefore TheNewGuy is a self-confessed serial rapist. And all over a fear of economics. Either that his payrate will diminish by finding a different form of employment or that it will be sapped by increased insurance payments.

While I'm picking on TheNewGuy somewhat it goes directly back to the topic in the thread at hand. If we would not accept "diminished income" as a defense for rape then it does not fly for the medical profession either.

Nor is it acceptable to argue that police and judiciary powers should be granted in individuals working for private companies in the private sector because they posses a self-proclaimed title to "Moral Better".
1.17.2008 6:53am
neurodoc:
Q: Punitive medicine? They have that now?
A: They had it a lot more years ago, unofficially of course, because it's an ethically questionable practice, and very much discouraged these days.
Ethically questionable? Understandable at times maybe, but never defensible as "ethical" conduct. (And I could see the civil lawsuit becoming a civil lawsuit and a criminal prosecution if something untoward happened during the course of a "punitive" measure. I don't think the discussion would be about "foreseeability" of the complication if neuromuscular blockade produced malignant hyperthermia and your justification for using it was that you needed to do a rectal exam on this fellow. A simple medical malpractice lawsuit might seem like a picnic in the park in comparison to what you would be facing then.)
1.17.2008 9:13am
BladeDoc (mail):
I'm actually sitting in a trauma society meeting (assiduously NOT listening to a lecture entitled "Lung injury is potentiated following enterocyte exposure to alcohol" -- painful) The discussion above is absolutely hilarious.

Let me make some points.
1. We are told by risk management that we CANNOT allow "significantly" intoxicated patients refuse potentially life-saving intervention.
2. There is NO WAY to know if agitated or combative trauma patients are primarily intoxicated (by alcohol or other intoxicants which do not have an immediate assay for example my hospital cannot test for Rohypnol, GHB, Ecstacy in less than 24 hours), head-injured, or just pissed off.
3. The mechanism of injury isn't always helpful to make these decisions. Although if you get hit by a train I can make a good guess that you are significantly injured I have seen severe head injuries from such "low energy" accidents as "fall from wheelchair", "fall from standing", "hit head on roof of squad car while we were "helping" him in", etc., etc., etc.
4. It's not just the rectal exam. To evaluate for CHI you need to get a CAT scan of the head, most of the time of the neck as well. This requires the patient to lie quite still for 5-15 minutes (depending on the age of the scanner, newer is faster).
5. So we have a situation in which we need tests to evaluate whether a patient have capacity to refuse the test and we are liable for our "guesses" at each step.


What the hell do you want from us?
1.17.2008 9:16am
Bruce Hayden (mail) (www):
In erring on the side of treatment he has explicitly admitted that he knowingly has made mistakes in his assessment of the patients mental competency; and this in regards to forced anal intrusion by his fingers. When competency is in place, and consent isn't, then this is plainly rape.

Therefore TheNewGuy is a self-confessed serial rapist. And all over a fear of economics. Either that his payrate will diminish by finding a different form of employment or that it will be sapped by increased insurance payments.
I was rather heartened to hear him, and would not think twice about having him work on me, should it be necessary. What must be remembered here is that there is a big difference in care required for trauma cases in the ER versus in most of the rest of the medical profession. He has essentially said that given the choice of saving someone and getting sued for assault, or the opposite, he will pick getting sued and saving the life.

Besides, no jury is going to convict for criminal assault, and a tort suit for battery is going to be a lot cheaper than for malpractice, which is what an ER doc would be risking otherwise. Besides, ER docs get sued anyway for malpractice - a lot. This is a very high risk profession, with the docs not able to minimize risks before proceeding, as most are able to do.
1.17.2008 9:24am
markm (mail):
I'll defer to the attending physician: his choice as to whether to write a check for treating a patient without his consent or to write a check for false arrest...
1.17.2008 9:33am
Brett Bellmore:
On January 1st I had a severe sledding accident, going over a makeshift jump ramp at the bottom of the local sledding hill, on a tube. Landed on my back with an audible "crunch", was blind for a couple minutes, agonizing pain if any compressive stress was placed on my spine at all... OTOH, had feeling in my extremities, and no paralysis.

Nobody tried to stick a finger up my rear end. Just saying...

Oh, anterior compression fracture of one of my vertebra, I'm expected to make a full recovery.
1.17.2008 9:40am
Bruce Hayden (mail) (www):
One thing that has become evident in this thread, thanks to our members here from the medical profession, is that it is highly likely that what was done here would ultimately fall within the standard of care, etc. of this sort of trauma in an ER.

Which, changing back a bit to the legal side, suggests the necessity defense. I don't practice in this area, my Restatement of Torts is in storage, and it has been a decade since the last time I had to take a bar exam. But if the ER doc reasonably believed the procedure to be medically necessary to potentially save the guy's life, and that reasonableness is shown through expert witnesses (whom I suspect would be easier to find here than the contrary, and I do know someone who does that as a sideline to his ER work), I expect that necessity, or its close kin, if proven, would be sufficient as a defense here.

Of course, with all those provisos, I would be interested in the thoughts of some attorneys (or, heaven forbid, law profs) who actually work in this area of the law.
1.17.2008 9:41am
MDJD2B (mail):

But if he decks you, and he very well might, no calling the cops. Cops are for criminals — not people who are too sick to know what they're doing and certainly too sick to leave the hospital.

Just for my information, whom should I call to control a combative person who is acting violently in a patient care area? If the answer is different depending on whether the combative person seems compos mentis, let me know the two alternatives.
1.17.2008 10:22am
gasman (mail):

I'll defer to the attending physician: his choice as to whether to write a check for treating a patient without his consent or to write a check for false arrest...

Not really an either/or situation. False arrest is not an act of the doc or hospital, but an act of policing. As long as the doc's statements to the police are factual ("his fist met my jaw during the course of a clinical interaction") then it's a policing judgement to determine whether arrest is required.
Just as the medical team's response to the patient's behavior was to infer medical need and incapacity to dissent, the police inferred from the patient's behavior at the time they met him that there was a policing need to arrest him.
At the center of all this is the patient's behavior. What was it about him that seemed to create a center of controversy in a place where the same patient/health care scenario plays out thousands of times per year without the big kerflufle? When lots of shit seems to happen to one person it might be because of that one person.
1.17.2008 10:27am
neurodoc:
I think we have now had "testimony" from an ER doctor, an anesthesiologist, a radiologist, a neurologist, and a trauma surgeon. (Did I miss anybody?) Is there a proctologist in the house? (Lastly, we might want to hear from a psychiatrist about the plausibility of the injury as alleged.)

Bruce Hayden, FWIW, I think you are right about "necessity" being the defendant's answer to a lawsuit for battery. Mention was made of "standard of care," but I don't think "standard of care" figures in as such when the cause of action is an intentional tort rather than one arising from alleged negligence. (I say not "standard of care" as such because I don't think it would be framed as that, though an expert testifying about whether or not it was "necessary" to perform the exam would in effect be testifying to something like the "standard of care.") Do others agree or disagree?
1.17.2008 10:33am
MDJD2B (mail):

Can we please nominate "anal wink" for Word of the Year?

Medicine uses words of art, just like law. An anal wink is constriction of the anal sphincter induced by stroking the skin next to the anus, and is a sign that innervation is intact.

If you want to go into bioethics and do things that affect real lives in a major way, you should grow up.
1.17.2008 10:34am
Oren:
What the hell do you want from us?
They want the ability to micromanage medical decisions for which they are entirely unqualified. Obviously nothing less that total control ("Doc, use a 22 gauge needle to suture that wound, I don't consent to a 20 gauge!") will satisfy them.
1.17.2008 10:40am
MDJD2B (mail):

I am relying on the NYT City Room blog for the "facts," and I see nothing there about the nature of the workplace accident, nor problems other than the head wound itself.

Neurodoc,

As you know, in cases like this the plaintiff publicizes the allegations, and the defendant is likely not to respond, even to correct gross misstatements of fact.

I think most of us can agree that the issue of spinal injury could have been resolved in a less invasive way, given the facts involved. Your points, as expressed in various comments, are well taken.

My point, however, is that I am skeptical of the facts as presented by the plaintiff's publicist or attorney. What you and others say is based on the plaintiff's story. I'd want to hear both sides before criticizing the actual doctor involved.
1.17.2008 10:40am
neurodoc:
Might the outcome of this case turn on a trier of fact's conclusion about whether the rectal examination was "reasonable" under the circumstances and done in "good faith"? But the plaintiff does not allege negligence, so what relevance "reasonable" or "standard of care"?

If you cough once or twice and some well-meaning person grabs you from behind in an inept attempt to perform the Heimlich manuever, perhaps breaking your ribs or causing you other injury, would his good intentions be a defense against a claim for battery? Would a Good Samaritan law give shield the defendant from liability? Is the relationship between the parties (doctor-patient versus unrelated persons) of any consequence? (Maybe I need to review Torts I.)
1.17.2008 10:45am
Fraidy (mail):
John Quincy Public, you are somewhere between "b.s. artist" and sociopath. In common English the phrase "to err on the side of" doesn't mean "hey I'm going to do whatever the hell I want." It means "in the absence sufficient data to reach a full diagnosis I am going to treat the patient for the worst potentiality."

I'm no psychologist, but using an ER doctor's use of the term 'err' to call him a serial rapist really does border on insane.

Please have a Do Not Resuscitate order tattooed to your chest and save everyone the trouble of treating you.
1.17.2008 10:49am
Uncle Fester (mail):
There would be no controversy if there was no arrest. All the points made by the MD's are correct- the doc did the right medical thing, and would have prevailed at every turn.

But then he had the patient arrested and destroyed his own credibility far better than any plaintiff atty could.
1.17.2008 11:01am
Stevethepatentguy (mail) (www):
The statement "He did not have any signs of abdominal trauma. He had full range of motion and movement of all four extremities." certainly doesn't rule out a c-spine injury or an internal bleed. Every ER doc or EMS provider has plenty of stories on the patient who looked fine. Yes it is possible to be up and walking around with fractured cervical vertebrae. About half of the people I put on a backboard are standing.

Trauma patients can be awfully tricky, brain injury, shock and hypoxia can do very strange things to a personality. In my own experience, I have transported a patient whose hand had been through a wood chipper; he insisted that we make sure his cat was in the house before we left the scene. I have cut someone out of a car who was more concerned about his groceries than his health or the hydraulic machinery I was using within inches of his body.

When working a head injury, we keep our first-in bag between us and the patient until we become comfortable that they aren't going to hit us. A friend of mine was punched in the head by a sweet little old lady (she latter apologised, profusely).
1.17.2008 11:01am
More importantly...:

If a patient is mentally sharp, 100%...


While I avoid med mal like the plague it is, I don't think a patient needs to meet this standard in order to effectively refuse care...
1.17.2008 11:16am
MDJD2B (mail):

But then he had the patient arrested and destroyed his own credibility far better than any plaintiff atty could

Don't you think you should find out what the patient actually did (from someone other than the patent's camp) before you say this?

And what would you do if someone struck you in your workplace?
1.17.2008 11:21am
Philistine (mail):


And what would you do if someone struck you in your workplace?



Hmmm, would that be before or after I stuck up a finger their ass?

In all seriousness, though, what struck me as well was having the patient arrested. Based on what is out there (which, of course, is not necessarily the full story)—this seems quite over the top.
1.17.2008 11:58am
some sense:
Sorry I can't resist. The "examination" was clearly done on a head trauma patient because in /fill in location of incident here/ so many people have their heads jammed way up their..........
1.17.2008 12:48pm
Toby:
Thoughtful - I thought I was agreeing with you...

Only in the US, where patients have been known to swallow suppositories because using them as designed is unfathomable could this be an issue.

And I still wonder about projection in Lawyers. Only lawyers, it seems, think that Doctors are just waiting to sick a finger up a butt. A few years back it seemed entirely plausible to lawyers, in one well known case, that an experience gynecologist was just waiting to perform cunnilingus on a woman explosively bubbling diarrhea behind a partial curtain in a waiting room.

And I stand by summation -- when the patient is paying for all consequences, he has the right to assume all decision making. Those consequences may be cost medical cost or legal costs. I noted with amusement one person's complaint about waiting too long in the ER while suggesting that the patient get the longer / slower / more expensive treatment.

In all probability, this patient is not paying for his treatment, and will not legally take responsibility for his health. While some would argue for different measures, whether winks are sufficient, etc, the standard was well within treatment norms. I vote to let the Doctor treat the patient quickly and get on to some other patient.

I would suggest that the but obsessed spend a couple weeks clearing impacted colons of Guillain-Barre patients by hand and see if they still maintain this puerile fascination…
1.17.2008 12:49pm
neurodoc:
The statement "He did not have any signs of abdominal trauma. He had full range of motion and movement of all four extremities." certainly doesn't rule out a c-spine injury or an internal bleed.
The point is that a "normal" rectal examination would not "rule out a c-spine injury or an internal bleed" (other than in the gastrointestinal tract itself) either. "Movement of all four extremities" would not conclusively establish that there was no injury to cervical spinal cord (distinguished from boney spine or vertebrae and intravertebral discs), but it would be far more reassuring than a "normal" rectal exam. And when you add in the other immediately relevant components of a neurologic assessment, that is power in various muscles groups (as opposed to just "moving all four"); sensory, especially over the perineum or sacrum if some concern about injury to the very most distal or lower spinal cord; and deep tendon reflexes along with presence/absence of a Babinski sign; then you have adequately ruled out a spinal cord injury, with no clear need to do a rectal examination. (Under other circumstances, it would be hard to fault someone for doing more than necessary by way of a physical assessment, unless doing so delayed doing more important things more timely. In this particular case, though, "necessity" may be an issue.)

To rule out a "c-spine injury," one would have to image the patient, that is xray the cervical spine or get a CT or MRI.
1.17.2008 1:00pm
MDJD2B (mail):

In all seriousness, though, what struck me as well was having the patient arrested. Based on what is out there (which, of course, is not necessarily the full story)—this seems quite over the top.

This, and comments like it, amaze me.

Person A strikes person B (possibly having been provoked). You are not allowed to strike another person, even if provoked. So Person B calls the cops and has Person A arrested.

This is what I would do. What would you do, apologize to Person A after he knocks out your teeth or something?
1.17.2008 1:12pm
JoelP (mail):
An ER has to initially presume that patients who are brought in with significant trauma want to be fixed up. The system breaks if you assume that drunk/neurologically injured people who say "get away" or "no that hurts" are making a rational decision to reject medical care.

In fact, seriously injured people in emergent situations are frequently psychologically incapable of rational decisionmaking even absent neurological injury.

But certain phrases will show that you have a serious reasoned objection to emergency medical care. "I am a Jehovah's Witness, no blood". "I am a DNR". "I would like to sign out AMA, please" - something that shows you either are thinking clearly now or have thought about the issue previously.

If you are afraid of being treated by ER docs, put a card in your wallet that describes what care you want or don't want to have.
1.17.2008 1:15pm
SenatorX (mail):
I would think standards to determine if the patient is able to consent or not would protect the doctor as well as the patient. Instead it looks like each doc gets to wing it. (NewGuy your method seems reasonable to me so I am not picking on that just the apparent lack of a standard of determination).

BTW next time I need some stitches in my head where can I go to avoid being anally probed?
1.17.2008 1:20pm
JoelP (mail):
MDJD2B: he incorrectly believes that any patient must be either competent or incompetent in all decisions, and thus can either refuse all care with a mumbled "no" or cannot be held liable for attacking people.

Of course, in real life the level of competence required to refuse urgent medical evaluation/treatment is higher than the level of competence required to know you shouldn't go around attacking people.
1.17.2008 1:20pm
neurodoc:
MDJD2B, I take your point about not relying on news accounts, especially since those are more likely to reflect the plaintiff's version than the defendant's. (Kinda like when the judge tells the jury that the opposing counsel will make opening statements, but those statements are simply each side's version of what they will try to prove, the cases they hope to convince the jurors of, not evidence.)

An anal wink is constriction of the anal sphincter induced by stroking the skin next to the anus
Is that the way ob-gyns go about it? Neurologists and neurosurgeons don't stroke the skin to elicit an anal wink, they stick it (gently) with a pin to see if it is there. (If not, then might put on a glove and do a rectal exam.) And this manuever is only performed when there is reason to think the spinal cord, especially the most distal part, has been affected by injury, tumor, etc. So it is decidely not part of a routine neurologic exam. (The resident won't be gigged by his/her attending for failure to do a "complete" neurologic exam because they didn't check to see if they could elicit an anal wink or a bulbocavernosus reflex.)

But MDJD2B, let me ask you about the ob-gyn approach to the sensory exam - was that a routine exam that that self-professed ob-gyn performed on Candy in the toilet stall in the porn novel with that title by Terry Southern? The fellow expressed dismay that she had not been seen by an ob-gyn in a very long time and he insisted on examining her then and there, with special attention to her sensory responsiveness. In that parody of the historic Stonewall incident, I don't know whether there were any arrests, but if the doctor had been pinched, I don't think he would have had much luck with a "necessity" defense. And whether Candy really gave informed consent to the examination might be a question too.

(As part of our discussion of the "anal wink," I was going to note that it would be quite difficult for someone to confirm for themselves that their own was intact, and refer for authority on that to that great book The House of God. But I expect that fewer people have read it than the porn classic Candy.)

Now to update, we have had an emergency room physician, an anesthesiologist, a radiologist, a neurologist, a trauma surgeon, and an obstetrician-gynecologist. If a proctologist and a psychiatrist (to address damages) would come forward, I think we would have this case pretty well covered, medically speaking. (Personal injury lawyers are certainly welcome to tell us what we might be missing from the legal perspective.)
1.17.2008 1:28pm
Philistine (mail):

MDJD2B: he incorrectly believes that any patient must be either competent or incompetent in all decisions, and thus can either refuse all care with a mumbled "no" or cannot be held liable for attacking people.

Of course, in real life the level of competence required to refuse urgent medical evaluation/treatment is higher than the level of competence required to know you shouldn't go around attacking people.



Well... no. It's not different decisions.

The patient make very clear he didn't want the procedure. The procedure is—technically battery. The patient resisted what he viewed as an assault by hitting the doctor (while being held down, after getting his hand free). This may also have been technically battery.

I find it hard to have sympathy for a doctor who pressed charges for a technical battery on him, now being sued for himself performing a technical battery. I'm assuming—perhaps erroneously—there was no real harm to the Dr.

Without the intervention of the police, I'm much more sympathetic to the Dr. But what was the point of calling the police and pressing charges?
1.17.2008 2:00pm
Philistine (mail):

This, and comments like it, amaze me.

Person A strikes person B (possibly having been provoked). You are not allowed to strike another person, even if provoked. So Person B calls the cops and has Person A arrested.



It wasn't that he struck him after being provoked. If the story (and his lawsuit) is to be believed, he struck the Dr. prior to the examination, in order to prevent the examination.
1.17.2008 2:05pm
DCRiley (mail):
I don't believe that the relevant question here is whether the particular treatment was medically necessary or whether the doctor followed protocol. A competent patient may refuse treatment even if it is medically necessary. The crucial question here is whether the patient was competent to refuse treatment even if the treatment was necessary. The issue of departure from protocol concerns the protocol for determining whether a patient is competent to refuse treatment.

I don't doubt for one second that, if the doctor, following that protocol, and under pressure to make quick decisions to save lives, errs on the side of caution and gives the treatment, he should be allowed to do so. The problem arises when the doctor does NOT attempt to follow the protocol for making a competency determination and simply decides that the patient should just "deal with it".

In large part, the discussion of whether the anal probe was necessary is irrelevant to the informed consent issue. We've sort of strayed from the discussion of what this case is really about.

We don't know much about the facts of this case. The only salient fact we have is that, after the patient struck a doctor in his attempts to resist, the hospital had him arrested for assault. While this seems incongruous with the hospital's apparent evaluation of the patient as incompetent to refuse treatment and it certainly makes me question how they arrived at this conclusion, let's not forget that the intent standard for assault or for battery is NOT the same thing as competency for the evaluation of medical decisions. I.e. even a person who is incompetent for certain purposes (e.g. for purposes of making a will) may be perfectly capable of committing assault or a battery.
1.17.2008 2:32pm
theobromophile (www):
Trauma patients get fingers or tubes in every orifice?

Um, I've been a trauma patient before - on the backboard, collared because I had briefly blacked out when my head hit the ground, and I'm pretty darn sure that didn't happen to me. For some reason, I don't think that Mass General gives substandard care, either.

From my experience as a (frequent?) patient, these things are largely avoidable. When doctors explain the procedure, the need for it, and the other alternatives (with risks and benefits of all options), people are quite willing to just go along with what the doctor says. If they really object, they can explain why and indicate their preference, and the doctor can either use the other option or perform the procedure in a way that meets the patient's needs.

When you treat people as if they are rational and intelligent, they tend to act as if they are rational and intelligent. Go figure.
1.17.2008 3:21pm
Oren:
A competent patient may refuse treatment even if it is medically necessary. The crucial question here is whether the patient was competent to refuse treatment even if the treatment was necessary.
No, a patient may not arbitrarily micromanage elements of his treatment - either he consents to let the Dr do his job or not at all. Can a patient being stitched up that demands that the doctor use a 24 gauge needle instead of 22? Can he demand that the Dr clean his wound with iso-propynol instead of iodine? Is it even meaningful to say that a patient consents to an entire procedure if he retains a veto over every minor detail?
1.17.2008 3:45pm
Aultimer:

Toby -

In all probability, this patient is not paying for his treatment, and will not legally take responsibility for his health.

I don't see the relevance, but since the head injury was sustained in an "on-the-job" accident, the patient wouldn't be paying for the treatment even if he wanted to - it's a workers' comp case.
Are you suggesting that the payor should have the right to override the patient's consent or lack thereof for treatment?
1.17.2008 3:47pm
Oren:
When doctors explain the procedure, the need for it, and the other alternatives (with risks and benefits of all options), people are quite willing to just go along with what the doctor says.
I'm pretty sure we've only been discussing the few corner-cases that aren't. Although I will support the general sentiment that doctors ought to explain things as patiently (no pun) as possible and allow the patient the maximal control consistent with effective medicine and expediency.
1.17.2008 3:47pm
Oren:
Are you suggesting that the payor should have the right to override the patient's consent or lack thereof for treatment?
This comes back to some notion of responsibility. If I injure my spine in some minor way at work and then refuse treatment, who is responsible if this injury slowly leads to paralysis?
1.17.2008 3:54pm
ElizabethN (mail):

No, a patient may not arbitrarily micromanage elements of his treatment - either he consents to let the Dr do his job or not at all. Can a patient being stitched up that demands that the doctor use a 24 gauge needle instead of 22? Can he demand that the Dr clean his wound with iso-propynol instead of iodine? Is it even meaningful to say that a patient consents to an entire procedure if he retains a veto over every minor detail?


He consents to the whole procedure, after having had it explained to him at whatever level of detail he requires, right down to needle size, etc., if that's what he wants (not that many patients do need or want that level of detail). If he wants the procedure to include some element that the doctor isn't comfortable with, the doctor can decline to do the procedure. Once it's been explained to him and things get started, he's in for the duration (generally speaking).

This case, however, is not about failure to consent to every detail of a procedure. A rectal exam is a separate procedure that the doctor may or may not do, not a small part of an overall procedure. If the patient doesn't consent, you either don't do it or you stand up and take your battery charges like a man (as TheNewGuy has at least theoretically agreed to do).

Incidentally, to the doctors who are suggesting that we think you enjoy doing rectal exams, we don't. But that doesn't matter to the legal analysis. It doesn't even matter if I'm performing the battery for your benefit. It's still a battery if I run around town yanking cigarettes out of people's mouths because I'm trying to protect them from cancer, even if the thought of touching cigarettes is repellent to me. Even if I burn my hand doing it.
1.17.2008 4:04pm
subpatre (mail):
Differing standards of competency are irrelevant, the suit is in a law court; only the legal standard will apply.

Plaintif arrived fully conscious and was "alert and oriented times three"
Plaintiff repeatedly and forcefully declined to consent to the rectal exam, became agitated, and struck a Hospital employee while attempting to resist the exam. Hospital security was called and plaintiff was restrained, sedated and temporarily intubated. When extubated, plaintiff remained agitated and the Hospital called the New York City Police Department.


BLadedoc cries the blues because the hospital risk folks tell her how to act; 'that we CANNOT allow "significantly" intoxicated patients refuse potentially life-saving intervention'. Grow up! They don't have the license, you do. Treat the patients like human beings.
1.17.2008 4:08pm
MDJD2B (mail):

If the story (and his lawsuit) is to be believed, he struck the Dr. prior to the examination, in order to prevent the examination.

Whatever the reason, if A strikes B it is reasonable for B to call the police. There is no reason any of us should tolerate someone striking us in our workplace.
1.17.2008 4:11pm
Oren:
A rectal exam is a separate procedure that the doctor may or may not do, not a small part of an overall procedure.
I think it was made pretty clear that the rectal exam was a routine part of a general examination to see if his head injury broke anything serious. The patient doesn't get to be so fine-grained about "procedure".

If he wants the procedure to include some element that the doctor isn't comfortable with, the doctor can decline to do the procedure.
That's fine for elective procedures, but please explain how this is going to work in the ER.

Treat the patients like human beings.
Seems fair. Now you treat the doctors like professionals whose training and judgment in matters medical far exceeds your own.
1.17.2008 4:15pm
MDJD2B (mail):

Is that the way ob-gyns go about it? Neurologists and neurosurgeons don't stroke the skin to elicit an anal wink, they stick it (gently) with a pin to see if it is there.

I was taught to elicit an anal wink by scratching theperianal area with something like the wodden end of a swab.

I don't remember the scene you describe in Candy, but if it is in Candy, I doubt that gynecologists should be doing it!
1.17.2008 4:15pm
ElizabethN (mail):

Whatever the reason, if A strikes B it is reasonable for B to call the police. There is no reason any of us should tolerate someone striking us in our workplace.


Well, perhaps, but if the police ask A why he hit B and he says, "Because B slugged me first," or "Because B was holding me down and attempting to stick his finger up my ass against my will," charges are unlikely to stick (and they didn't). You're allowed to use reasonable force to prevent a battery against you when you are not the initial aggressor, and I think this situation (at least as described by the plaintiff) qualifies.
1.17.2008 4:17pm
ElizabethN (mail):

The patient doesn't get to be so fine-grained about "procedure".


That's a legal judgment that neither you nor I gets to make.
1.17.2008 4:19pm
DCRiley (mail):
It is perfectly true that a patient generally doesn't care about the gauge of the needle or other tiny details. while the rectal exam may well be an ordinary part of a course of treatment, I think it goes without saying that it is a particular invasion of the body that a reasonable person would say is on a more intrusive level than listening for a heartbeat or looking down a patient's throat. I hardly think that refusing a rectal exam is micromanaging.

It also appears untenable that, as Oren suggests, once you consent to a course of treatment, you lose all rights to refuse a particular part of it, or to change your mind. The logical conclusion of that argument is that if a doctor wanted to perform a rectal exam as part of a routine physical, the patient would have no right to refuse if he had consented to the physical as a whole. This is clearly not the case.

From a doctor's standpoint (which I am not), I imagine it must be clearly frustrating when a quick procedure will give valuable information and a patient does not consent. Further, the doctor has years of training, is unlikely to recommend the procedure just for fun, and is likely absolutely correct that the procedure should be performed. It is for these reasons that we don't require consent when the patient is incapable of giving consent due to incapacity.

However, when a patient does have the capacity to make an informed decision, he has the right to do so, even if it is medically the wrong decision. I realize that the practical world does not always allow much time for doctors to sit down with patients and carefully explain things to them, but when a patient knows the benefits and risks of a treatment, has the capacity to make a decision, and refuses the treatment, he may do so. We shouldn't confuse capacity with an evaluation of whether the patient made the medically correct decision.
1.17.2008 4:32pm
SarahNu:
Despite my libertarian bent, I have no interest in addressing the moral implications of this issue - since we're talking about fully private conduct and not government-sponsored forced rectal exams.

As a lawyer, my first thought was this: If the hospital doesn't do the exam and the patient suffers harm and can convincingly argue that he was incapacitated (and thus the hospital should have ignored his refusal to consent), there are potentially a boatload of damages at issue.

On the other hand, if the hospital does do the exam and the patient turns out okay and argues that he was mentally sound (and therefore the exam was battery), what are the damages? Nominal at best.

This could be a pure business decision: a lawsuit resulting from an unconsented-to rectal exam is significantly less scary than a lawsuit about a permanent spinal cord injury.
1.17.2008 4:47pm
Oren:
The logical conclusion of that argument is that if a doctor wanted to perform a rectal exam as part of a routine physical, the patient would have no right to refuse if he had consented to the physical as a whole.
The patient is free to ask what is involved of the entire procedure before it starts.
1.17.2008 5:10pm
theobromophile (www):
Oren,

I'm not sure how you make the leap from consenting to a procedure at all to consenting to each detail of it.

I've been in the ER, more times than I would care to count. When the doctors needed to cut my clothes off of me to do tests (ultrasounds for internal bleeding and x-rays to see if I had fractured anything), they asked first. They didn't say, "We will do this," they said, "May we do this, so we can do x, y, and z?". This was in an ER with a half-dozen doctors around me and my head and neck in a brace so I couldn't mess up my spine. Somewhere along the line, those doctors decided that cutting clothes off patients, although medically necessary in their educated judgment, was not something they would force on anyone.

Now, as for the idea that us mere earthlings must put our faith in those Higher Beings, doctors, how 'bout an analogy? When you hire a lawyer, do you get to decide whether or not to settle? to continue to trial? to appeal? Or do you let the all-wise lawyer, who has spent years educating himself and developing skill in this area that is beyond you, do whatever he will?

When you get an architect to design your house, you don't give him free rein simply by virtue of having training and a degree. It's still your house... your bank account... and your body. The training and expertise of one person does not negate the fundamental right to autonomy of another person.
1.17.2008 5:16pm
MDJD2B (mail):

if the police ask A why he hit B and he says, "Because B slugged me first," or "Because B was holding me down and attempting to stick his finger up my ass against my will," charges are unlikely to stick (and they didn't). You're allowed to use reasonable force to prevent a battery against you when you are not the initial aggressor, and I think this situation (at least as described by the plaintiff) qualifies.

OK, but the police may still need to come and restore order once everyone starts tt fight everyone else.

As I implied, I am skeptical of the story as presented by the plaintiff's side. It is totally outside my medical experience for a doctor to hold down someone who was rational, in order to perform an examination or procedure. The closest I've seen is restraint of a patient in the meddle of a procedure so the doctor can get the patient throught the procedure safely and remove instruments, etc.
1.17.2008 5:34pm
neurodoc:
DCRiley, I agree with you that the central question is a legal rather than medical one, and I freely admit that some of the medical discussion here has been a digression. (But when will the VC return again to the subject of rectal examinations?) Do you think, though, that the question of medical "necessity" is a wholly irrelevant one, that the answer to it could have no bearing on the outcome of this civil lawsuit?

If, for example, a young woman dropped something on her foot, breaking a metatarsal bone, I think a doctor who insisted on performing a vaginal exam as part of his assessment would have a lot of explaining to do, and "fingers and tubes in every orifice" wouldn't work. If, on the other hand, that young woman was in an auto accident and in the emergency room could not move all her extremities equally and report normal responses to sensory stimuli, "fingers and tubes in every orifice" might equal "necessity," might it not? I don't know, though, whether "necessity" would or would not be a good defense if your plaintiff was neither at the time a child, nor psychotic or encephathic (include intoxicated), and they were "competent" to consent according to whatever standard would apply, but the doctor went ahead notwithstanding their clear and emphatical "no." (Competency to consent should be the same as competency to refuse, shouldn't it? It can't be a higher standard to refuse treatment than to agree to treatment, can it?)

MDJD2B: I was taught to elicit an anal wink by scratching theperianal area with something like the wodden end of a swab.
So your clan "scratch(es) the perianal area with something like the wodden end of a swab;" ours uses a sharp pin, though not too forcefully applied, to elicit the same reflex response. A "cultural" difference? Of course, you and your ilk spend almost all of your time occupied with those nether parts, and only female ones, while most neurologic types go there very infrequently, generally for different reasons, and don't limit ourselves to either sex.

I don't remember the scene you describe in Candy, but if it is in Candy, I doubt that gynecologists should be doing it!
Did you read the book? If you did, I am very surprised that you don't remember the scene (he meets Candy in a bar, is dismayed to learn she hasn't had a pelvic examination in a long time, convinces her to let him examine her in a toilet stall...). It was a major part of the story and one I found to be particularly hilarious, especially with the allusion to the Stonewall bar on Christopher Street in the Village. I never imagined that what the fictional ob-gyn, if indeed he really was one, did in the book was professionally correct. Every medical specialty, and probably every field of human endeavor, has some wackos, though, and I was willing to suspend disbelief.
1.17.2008 5:36pm
MDJD2B (mail):

It also appears untenable that, as Oren suggests, once you consent to a course of treatment, you lose all rights to refuse a particular part of it, or to change your mind.

In general this is correct. Once a procedure starts, the physician probably may continue doing the procedure to the point of safety. For example, if a patient changes his mind in the middle of a biopsy, the doctor is probalby within his rights to stop andy bleeding and clsoe the skin. In fact, the doctor probably would be obliged to do this.

I don't know that there are any cases on point, bout one argument a doctor-defendant would have in this circumstance would be that demanding the doctor stop immediatley with the patient in danger would be, ipso facto, a sign of lack of capacity. No rational person would make this demand.
1.17.2008 5:39pm
MDJD2B (mail):

When you hire a lawyer, do you get to decide whether or not to settle? to continue to trial? to appeal? Or do you let the all-wise lawyer, who has spent years educating himself and developing skill in this area that is beyond you, do whatever he will?


From Comment (2) to Rule 1.2 of the ABA Model Rules of Professional Conduct (adopted by almose every state):


On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved.

In other words, you determine the strategy and the lawyer determies the tactics.
1.17.2008 5:45pm
Malvolio:
Just for my information, whom should I call to control a combative person who is acting violently in a patient care area? If the answer is different depending on whether the combative person seems compos mentis, let me know the two alternatives.
If he's compos mentis call a cop. If he isn't, call a doctor.

In this case, the physician seems to want it both ways. The guy isn't competent to make decisions about his own care, but mysteriously, is competent enough to be held legally responsible for his actions.
If you want to go into bioethics and do things that affect real lives in a major way, you should grow up.
If you want to go out in the real world, especially if you want to deal with people under stress, you should lighten up.

I think Anal Wink would be a good name for a band.
1.17.2008 5:50pm
PatHMV (mail) (www):
In other words, the Rule does not say anything at all, other than "work it out amongst yourselves." The client generally remains free to fire the lawyer whenever they want, so if the client doesn't like the "tactics" the attorney is using, the client may fire the lawyer. There may be some limitations on this in the middle of trial, but I feel quite certain that if a client didn't like the tactics that a lawyer was following (say, a la the Practice's "Plan B," casting suspicion on the client's relative or spouse or friend), and the lawyer continued to do so anyway, the judge would allow the client to hire a new lawyer and ditch the old one.
1.17.2008 5:51pm
JoelP (mail):
Micromanaging your lawyer may be analogous to micromanaging your physician during an office visit. To extend the analogy to a trauma case is misleading. Perhaps if the attorney accompanied the client to a meeting in Russia, the client was high on cocaine, and members of the Russian mafia were asking questions with drawn rifles... the analogy might then hold.
1.17.2008 6:13pm
neurodoc:
When you hire a lawyer, do you get to decide whether or not to settle?
Absolutely. Not settling when the lawyer counsels to do so is akin to leaving the hospital AMA, but its the client's call, not the attorney's. And the lawyer can't refuse the settlement offer if the client wants to take it.

to continue to trial? to appeal?
This may be more akin to a patient trying to dictate to the doctor what to prescribe for him/her or how to do a procedure. The doctor is not the patient's handmaiden, obliged to subordinate his/her judgment, ethics, etc. to the patient's, even if the patient is paying the bill. Similarly with lawyers and their clients. The thing is whether all this plays itself out in the beginning or soon thereafter before things are very far along. If not in the beginning, then everything may be a great deal more complicated, and the lawyer, like a doctor, may not be entirely free to "abandon" the client.
1.17.2008 6:17pm
JoelP (mail):
Malvolio, it can be both ways. A patient can be sufficiently competent to know not to attack people, yet insufficiently competent to understand the pros and cons of an emergent rectal exam. In fact, this situation describes the majority of patients (most of whom simply trust the doctor's judgment without understanding why a rectal exam might be necessary).

Now if you were arguing that a jury ought not to convict the patient of battery in this case, you might be correct. One might well expect reasonable juries to acquit both the physician and the patient of battery.
1.17.2008 6:17pm
tioedong (mail) (www):
Doctors don't sedate people and place a tube in their mouth for fun, or to stop a combative patient from hitting them.

This is done when the head injury is so bad that they aren't breathing enough. And a person with a head injury who is having trouble breathing is either intoxicated (overdose) or has muscle weakness from a spinal cord injury.

Or the tube might have been a stomach tube to pump their stomach or check for GI Bleeding (I've forced stomach tubes down incompetent/drunk/high patients stomachs...if you miss they have a bleeding ulcer, they can bleed out and die on you )

As for a rectal exam, unless you are checking for blood in the stool (again, massive bleeding from the stomach) or there is other evidence of spinal cord injury (cauda equina) (not head) injury), I am puzzled why it was done. Like a vaginal exam in a woman, there are reasons to check that area, but one can't figure out why it was done from the patient's confused and paranoid story.

One question: When people are sick enough to have breathing tubes or there is a question of spinal cord injury, they usually have a urethral catheter placed. Wonder why he's not suing for that more painful procedure

Busy ER doctors have a lot better things to do than force rectal examinations on people.
1.17.2008 6:23pm
Sid (mail) (www):
I have been following this thread. Neurodoc, I am not a physician so you can't add me to that list, but am I am an officer in a Military Police unit (National Guard) and have served on a medical malpractice jury (ruled in favor of the physician).

Without shouting, the jury will not care one tinker's damn about medical necessity and standard of care and informed consent and all the medical issues mentioned in this thread. Yes, it will be hashed out in the case and there will be lines of expert witnesses on both sides. The heart of this case is not the standard of care. It is not a medical case. It is a case with a medical backdrop.

The jury and the law are not going to dwell on the medical protocol. That is Act One of the drama. Act Two is where we hear about the patient's background and his coworkers tell us how he was just having a normal day when a guy from a temp work crew dropped a board on the patient's head. He was okay but the crew leader knew he needed stitches so Frank the welding assistant drove him to the hospital.

Act Three is where the doctor and the hospital try to explain medical details (anal wink will bring some smirks to the jurors lips) and how they have standards of care and protocols. The doctor had to make a snap decision and he did what he was trained to do and spinal injuries and patience competence are his bread-n-butter. Medically valid expertise and everything.

Act Four is the really interesting part. For those of you who claim to be physicians who can't believe laymen with no medical training would question your judgment, this is where the money is won and lost. In Act Four, we ask the police some questions. Did the hospital call? Who called? Who wanted the arrest made? Why were the charges dropped? Was there a social worker or mental health technician assisting the patient when you arrived? Was the patient sedated when you arrived? Was the doctor angry, sullen, suprised, remorseful, tired, sad, etc...? Was the patient angry, sullen, withdrawn, tired, intoxicated, sad, weeping...? Why were his clothes not given back to him before he was escorted to the court for arraignment?

Act Five is the closing and the patient's attorney will detail how tortured his life became after the hospital encounter. The doctor and hospital will claim innocence and argue that if every hard call they have to make is questioned then medical treatment will cost even more than it is now.

Act Six - the jury room. (Act Four is the only thing on the jurors' minds) Is the patient a drunk dickhead looking for a paycheck or is the doctor an arrogant asshole? Why was he arrested? If he was possibly so whacked out that he could not refuse a medical test, then why did the hospital not have a protocol to help him come out of it? The jury will decide this case based on the reasonableness assumption. What was reasonable and did both parties do that?

This is NOT a medical lawsuit. It is a lawsuit in a medical setting. Attention physicians who think laymen have no right to judge the merits of any portion of this case, get your head out of the very spot this case revolves around. We judge lawsuits of all aspects of life. A jury of your peers is a jury of citizens, not professional peers.

We operate in the US. I build playgrounds in my daily life. Talk about frivolous lawsuit danger. Yet, I operate every day with safety as a protocol because as a grown-up, mature, responsible citizen - I know that if a lawsuit arises I will be judged by ordinary people and not playground professionals.

Grow up.
1.17.2008 6:24pm
Oren:
They didn't say, "We will do this," they said, "May we do this, so we can do x, y, and z?". This was in an ER with a half-dozen doctors around me and my head and neck in a brace so I couldn't mess up my spine.
As I said earlier, it does no harm and quite a bit of help, to explain what is going on and involve the patient.

Now, as for the idea that us mere earthlings must put our faith in those Higher Beings, doctors, how 'bout an analogy? When you hire a lawyer, do you get to decide whether or not to settle? to continue to trial? to appeal? Or do you let the all-wise lawyer, who has spent years educating himself and developing skill in this area that is beyond you, do whatever he will?
Those are larger decisions that are more akin to consenting to entire procedures. The patient in question would be more like a criminal defendant telling his attorney to defend him but forbidding him from, say, filing motions to suppress.
1.17.2008 6:26pm
Malvolio:
Malvolio, it can be both ways. A patient can be sufficiently competent to know not to attack people, yet insufficiently competent to understand the pros and cons of an emergent rectal exam.
Nope, it can't.

Or rather, if we play around with the definition of "competence" so that it produces the result we want in a given situation, it ceases to be meaningful.

Look at the instant case. The physician clearly felt that the definition of "competent" was "deferential to the physician" -- and the only thing that would dissuade him from this definition was a punch in the face. Then he realized how important it was that the patient be responsible for himself.
1.17.2008 6:54pm
K Parker (mail):
neurodoc,

What's the Golubchuck case? I couldn't find any recent posts by Kopel about it, at least not here at VC.

gasman,

Thank you for pointing out that the hospital didn't "have him arrested", the actual decision to arrest was something taken by the responding officers
1.17.2008 8:02pm
K Parker (mail):
Nevermind, I found it--Google couldn't seem to find any references to Kopel on VC in the last month, which of course isn't correct but I have no idea what I was doing wrong.
1.17.2008 8:19pm
theobromophile (www):
<blockquote>
Those are larger decisions that are more akin to consenting to entire procedures. The patient in question would be more like a criminal defendant telling his attorney to defend him but forbidding him from, say, filing motions to suppress.</blockquote>
"Motion to suppress" isn't a euphemism for acts that occurred in the Oval Office during the Clinton presidency, Oren. Last time I checked, no one felt as if his bodily autonomy were being violated by making a Fourth Amendment claim. This is like an attorney refusing to settle a case and telling his client that he will go to trial, like it or not - and hey, isn't the client paying the lawyer for his expertise?

Again - his body, his bank account, his life. No amount of "authority" may usurp that.
1.17.2008 8:33pm
neurodoc:
K Parker , the Golubchuck case is very different from this one here, though one could say both are about whether it is the doctors or the patient and family who say what happens. (I mentioned the Golubchuck case because a couple of bioethicists were opining freely in Canadian newspapers about matters of great gravity without the relevant facts.) It is a fascinating one, though, and I expect Kopel and/or others will have more to say as it unfolds.

A more up-to-date and informative, though still less than fully informed piece appeared this week in the Canadian Jewish News (sorry, can't manage to link) under the heading "Doctors, family battle over issue of life support."
1.17.2008 9:22pm
JoelP (mail):
Malvolio: that's ridiculous. Clearly, a different level of competence is required for different capabilities. For an easy example, if you are extremely drunk, you are still liable if you attack someone. You are competent for that. Yet if you come on to me, I should (morally and perhaps legally) not sleep with you.

If you are even tipsy, you are incapable of giving informed consent for an elective procedure. You can buy a car and get a tattoo, but you can't get a nosejob.
1.17.2008 10:07pm
Oren:
Last time I checked, no one felt as if his bodily autonomy were being violated by making a Fourth Amendment claim. This is like an attorney refusing to settle a case and telling his client that he will go to trial, like it or not - and hey, isn't the client paying the lawyer for his expertise?
You are conflating the goals with the methods. We go to a lawyer/doctor with goals (cure my cancer, sue this guy) and they give us options (chemo or radiation, court or settlement) but past that point the methods used to achieve the client's stated goals are best left to the expert.

Again - his body, his bank account, his life. No amount of "authority" may usurp that.
Of course not. He's welcome to stay home and bleed out if he choses. What he cannot do is come to the hospital for help and then start second-guessing their professional judgment - when you put yourself in someone else's care you necessarily cede your judgment to theirs.
1.17.2008 11:28pm
David Schwartz (mail):
Two issues seem to be being conflated here. One issue is whether or not the doctor was justified in giving the patient a rectal exam against his wishes. Another is whether the patient was justified in using force to prevent the unwanted rectal exam.

Even if the answer to the first question is "yes", that doesn't make the answer to the second question "no".

It seems to me that the fact that the rectal exam was performed without his consent is sufficient to justify his using force to prevent it. I would strongly suspect the law will agree with me.

The patient believed the force was being used to prevent a sexual battery. Given his lack of expertise, this belief seems objectively reasonable. The patient first tried other means to prevent what he reasonably felt was a sexual battery, those means failed. The only mechanism left for him to prevent it was force. He used a measured amount of force that was definitely intended to be non-lethal.
1.18.2008 3:10am
Sid (mail) (www):
Oren,

You scare the hell out of me.

I am not trying to belittle you or your position. I have used a little humor in some of my posts but hope that I have made a subtle point also. But as I have followed this thread, you are not coming across as someone with a devotion to delivering care with respect for your patients.

Please, make your point with care. As I read your posts, I would not want you for a physician.
1.18.2008 9:07am
Oren:
You're in luck Sid, I'm not a physician. I'm just someone that believes that the majority of doctors make medical decisions in the good-faith belief in what's best for the patient and that it is folly to elevate the transient whims of a fickle public above the judgment of trained professionals.

For instance, consider the recent surge in prescription antibiotics that is medically indefensible - giving people medication that is physically incapable of helping their problem while simultaneously making other diseases worse. An uninformed (rationally ignorant, to use the buzzword on this blog) public is just not helping.
1.18.2008 11:27am
Oren:
Also, respect for the patient does not entail (IMHO) deference to their judgments on matter for which they are not qualified.
1.18.2008 1:21pm
Suburban Banshee (mail):
If rectal exams are indeed a common procedure to check for spinal cord injury, it's obvious that the medical profession needs to PUBLICIZE this. And it is obviously not a well-known fact.

If I'm alone, injured, and thus already freaked out, and a medical professional starts giving me an unexplained rectal exam when my injury is in my head, the first thing that will leap to mind is sexual assault, not "Oh, what an interesting procedure! How caring the doctor is!"
1.18.2008 1:40pm
theobromophile (www):

What he cannot do is come to the hospital for help and then start second-guessing their professional judgment - when you put yourself in someone else's care you necessarily cede your judgment to theirs.

I have run across, perhaps, a handful of doctors who have thought that. The level of care they gives borders on malpractice.

I ditto Sid - you scare the hell out of me. Patients in a hospital do not cede their judgment to that of a physician; after all, the physician's judgment is not an end of itself, but a means to helping the patient. The physician is hired to help the patient, not appointed by the Almighty to run his life.
1.18.2008 9:30pm
Oren:
First of all, I'm a physicist, not a physician so there's really no reason to be scared. Small mercies, I know.

More to the point, the physician is indeed hired by the patient to achieve a goal - the patient's health. Given that there is a large information imbalance between the two, it's virtually guaranteed that the doctors knows more about how to achieve this end than the patient.

You wouldn't demand that your contractor use wood nails when he decided that wood screws were right for the job. You likewise wouldn't demand that your mechanic use a socket wrench instead of an impact hammer to remove a stuck bolt. One hires a contractor (mechanic) to accomplish a task: fix my roof (replace my transmission) and from there it's really their call how it goes. Why should a doctor have to tolerate this kind of second-guessing? This is especially true given the wacky ideas that some people are fond of believing about medicine that are provably false.

Once again, I'm not saying that doctors should not calmly and carefully explain (without jargon) what is going on, what they are going to do and why it's a good idea. What I am saying is that one does not go to a doctor and say "fix my head wound" and then start dictating the proper course of care any more than one goes to a lawyer and says "defend me from this suit" and then start dictating which motions to move and which witnesses to call.
1.18.2008 10:19pm
ElizabethN (mail):

You likewise wouldn't demand that your mechanic use a socket wrench instead of an impact hammer to remove a stuck bolt. One hires a contractor (mechanic) to accomplish a task: fix my roof (replace my transmission) and from there it's really their call how it goes. Why should a doctor have to tolerate this kind of second-guessing?

Because a doctor works on your body, not your car. If you go to the hairdresser and tell her to give you a medium-long cut and you start seeing her hacking your hair to the scalp, are you supposed to keep your mouth shut because she's the professional? Even if she tells you you would look a lot better with shorter hair, you're the one who has to live with the cut. You don't cede all control over your hair just because you sat in her chair, and you don't give up all control over your body because you walked into the doctor's office.

For that matter, you don't give up all control of your car when you walk into the mechanic's shop, either - it's just that people care a lot more about the details of what is done to their bodies than they do about the details of what is done to their cars.
1.19.2008 1:26am
Tracy W (mail):
You wouldn't demand that your contractor use wood nails when he decided that wood screws were right for the job. You likewise wouldn't demand that your mechanic use a socket wrench instead of an impact hammer to remove a stuck bolt.


I can see you haven't met my father-in-law.
1.19.2008 4:42am
Oren:
If you go to the hairdresser and tell her to give you a medium-long cut and you start seeing her hacking your hair to the scalp, are you supposed to keep your mouth shut because she's the professional?
Objection - invalid analogy. The man in question came in for a head-wound examination and got a head-wound examination.
1.19.2008 8:29am
ElizabethN (mail):

Objection - invalid analogy. The man in question came in for a head-wound examination and got a head-wound examination.

From the point of view of the patient, the analogy is close. He came in for a head-wound examination, and was surprised and dismayed by the doctor's interest in his ass. The hairdresser could be cutting some short layers but intending to leave you with a medium long cut, too - that doesn't mean you can't ask what the hell she is doing, and tell her to stop if you don't want it.

Part of the disconnect here is that you are arguing that patients should trust their doctors, and we are arguing that patients are not legally required to trust their doctors. These positions are not mutually incompatible.
1.19.2008 12:45pm
neurodoc:
Part of the disconnect here is that you are arguing that patients should trust their doctors, and we are arguing that patients are not legally required to trust their doctors. These positions are not mutually incompatible.
It's not so much about "trust," but rather about patient "autonomy," that being the patient's right to decide for him/herself whether to go along or not with what their doctor(s) recommend. And once more I will allude to the Golubchuk case which David Kopel blogged about back on 12/26/07 I believe, since it is very much about "autonomy." (To be sure, there are other issues in that one, including what is/isn't "futile" medical care. The most fundamental issue in it, however, is whether the doctor's decisions are trump over those of the patient and family.)

Just as the old adage had it that bad facts make bad law, so too do I think the facts of this particular case (Persaud), with the dispute over whether a rectal exam was really necessary or not, are not especially good ones for any very meaningful discussion of patient autonomy. The whole business is rather quirky and mostly about the legal question of what would serve as a defense to the plaintiff's claim of battery, e.g., if the patient was mentally competent at the time, able to give informed consent, is it of much legal relevance whether or not experts would say a rectal exam should have been done or the ER doctor sincerely believed it was in the patient's best interests to have a rectal exam?
1.19.2008 3:11pm
theobromophile (www):
Oren,

I cannot fathom how you make the analogies you do. To me, they are all completley off-base. A rectal examination for a head wound is a little out of left field for the average patient, and involves a HUGE infringement into bodily autonomy.
1.19.2008 3:43pm
ElizabethN (mail):

Just as the old adage had it that bad facts make bad law, so too do I think the facts of this particular case (Persaud), with the dispute over whether a rectal exam was really necessary or not, are not especially good ones for any very meaningful discussion of patient autonomy.

Actually, yes, I think it's a great case for discussing patient autonomy. It's not a good case for discussing medical malpractice, but drawing a distinction between requirements for consent and malpractice is a good thing. I have observed doctors (here and elsewhere) who seem to think that negligence and HIPAA are the only legal issues they ever have to think about. In fact, informed consent is also a big deal, which is why this case is stirring people up.
1.19.2008 3:55pm
Mary Katherine Day-Petrano (mail):
"I have observed doctors (here and elsewhere) who seem to think that negligence and HIPAA are the only legal issues they ever have to think about."

Yes, and THAT is why if one reads all the Settlement Agreements and Consent Decrees on the DOJ ADA Homepage, one will see that doctors and hospitals are among the most frequent parties DOJ holds responsible for having violated the ADA.

I wonder if the hospital considered if there was any reasonable accommodation available to allow the victim to give or deny his "informed consent" before holding him down?

I hope this plaintiff wins his lawsuit.

Very recently, my husband and I sustained yet another car accident attack we feel is related to our ADA litigation, this time failed brakes causing us to be rear-ended at appx. 40 mph.

Unbelievably, the ER at the local hospital, while x-raying me from neck to toe, failed to do the same with my husband, and he did not learn until 6 days later the ER missed the fact he had suffered a broken rib in the accident. (The passenger in the car that hit us had a broken arm. Duh!) I got a concussion, and the hospital told me people 'only get neck injuries in car accidents' and did not CT scan my head. They also did not tell me I had a ruptured cervical disc from the accident.

When American health care gets this shoddy, no wonder the victim in this example felt the need to sue! How patronizing and arrogant to assume that person who suffered a head injury could not give his informed consent.

Some people prefer getting second opinions, rather than just plowing ahead.
1.20.2008 1:55am
Mary Katherine Day-Petrano (mail):
"failed brakes causing us to be rear-ended" ---> I guess I didn't state this in a clear way (the concussion). I meant we were rear-ended when the car approaching us as we were stopped for a light at a railroad crossing, had brake failure ... screeching metal on metal, then boom right into the rear-end of our car.
1.20.2008 1:59am
Oren:
A rectal examination for a head wound is a little out of left field for the average patient, and involves a HUGE infringement into bodily autonomy.
So, an actual physician has come on the blog and told you that what you've said is just factually not the case. Maybe he's part of the ass-fingering doctor's conspiracy too?
1.20.2008 10:15am
subpatre (mail):
I have observed —for the courts— dozens of physicians treating ER head traumas. The injuries ranged from bruises to cave-ins, the treatment from competent to gifted.

Never once was there any examination or contact with the anus or an area near it. Never. Anyone claiming anal exams (Persaud) as SOP is FOS.

So is the argument (Oren's) that individuals forfeit all personal sovereignty when they enter the ER.
1.20.2008 3:53pm
markm (mail):
Malvolio, it can be both ways. A patient can be sufficiently competent to know not to attack people, yet insufficiently competent to understand the pros and cons of an emergent rectal exam. From the patient's viewpoint, he was attacked, and had every right to punch someone who was going to stick a finger up his rectum without his consent. If the doctor's opinion was that the patient was capable of comprehending why he wanted a rectal examination, he should have stopped right there when he didn't get consent. If his opinion was that the patient didn't understand, he should have been ready to deal with the reactions likely to be elicited by going ahead.

the hospital didn't "have him arrested", the actual decision to arrest was something taken by the responding officers Acting on what the hospital told them. The arrest was not reasonable on the facts, and I think it a whole lot more likely that the hospital distorted or omitted facts than that two policemen would decide to arrest a delirious man for striking out when someone messed with his anus.
1.20.2008 7:51pm