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[Adam Kolber, guest-blogging, February 13, 2008 at 9:18am] Trackbacks
Freedom of Memory, Part 2:

In my last post, I discussed efforts to identify and develop pharmaceuticals to dampen aspects of memory in ways that might be practical for treating recent trauma. Some of the discussion was a bit sci-fi. But I ended the post promising to discuss a true story of memory erasure that shows why the discussion is not as sci-fi as you might have thought.

Dr. Scott Haig has described the following events which occurred over ten years ago: A young mother went to him for a bone biopsy. Rather than having general anesthesia, as would be typical, the patient wanted just local anesthesia. According to Haig, "She was adamant about not going under, but agreed to 'some sedation' if we thought it was necessary." Also, the patient agreed to have an anesthesiologist in the room "just in case."

Haig removed the tissue sample and had it sent immediately to a pathologist at the hospital. The pathologist was not expected to make an on-the-spot diagnosis. Rather, Haig wanted to confirm that he had removed an adequate sample before closing up the patient's wound.

Now it starts to gets interesting. The pathologist, in another part of the hospital, contacted Haig through an intercom system in the operating room. The pathologist, not realizing that the patient was conscious, started discussing the sample in very grave terms. Before Haig could convey the fact that the patient was able to hear every word being said (the intercom was only working in one direction), the pathologist revealed that the patient had a very bad form of cancer and said so without the kind of kid gloves he might have used if he thought the patient were awake.

The patient began shrieking, "Oh, my God. Oh, my God. My kids." At this point, the story gets really interesting. The anesthesiologist decided to inject the patient with an anesthetic called propofol. In addition to its anesthetic effects, propofol "erases" (that's a direct quote) the patient's memory of events that precede it by a few minutes. Here's what happened next, according to Haig:

Ten minutes later Ellen [the patient] woke up, happy and even-keeled, not even knowing she'd been asleep. From the recovery room she was home in time for dinner. "The procedure went smoothly, but we'll have to wait for the final pathology reports," I said, which was not exactly the whole truth, but it let me get the oncology people cued up, a proper diagnosis, and Ellen herself emotionally prepared. I would give her the bad news at a more appropriate time.

The ending was not quite happy; it was a recurrence of the cancer she'd had years before — fairly rare for that type of tumor. Ellen died of it about six years later. I confess I never told her about the incident with the intercom.

Over a decade later, I'm still not sure that was right.

The story illustrates a number of the issues I raised earlier about memory dampening. The above facts make for a great issue spotter exam question, and I'll sketch a few thoughts about it.

First, there's an issue of informed consent. It seems like the anesthesiologist's injection was outside the scope of the patient's consent. This is not entirely clear, however, as it might depend more precisely on what the patient said 10+ years ago. She agreed to have an injection if her doctors thought it was really necessary, though she probably envisioned the need to arise from physical pain, rather than emotional distress. There is an emergency exception to the informed consent doctrine, and perhaps the patient might have thrashed about in some clearly dangerous way if she were not sedated. Barring that possibility, however, it seems questionable to apply the emergency exception under circumstances that arguably contradict the patient's earlier request.

Assuming that the injection was outside the scope of consent, medical personnel could have liability for failure to obtain informed consent under a theory of negligence or even tortious battery. (On an exam, you might want to allude to criminal law theories of battery and/or poisoning, though I suspect prosecutors would be unlikely to pursue this case, especially given what seem to be benevolent motives on the part of the doctors.)

Second, there's a question of whether any medical personnel can be liable for negligently inflicting emotional distress, given the failure of the intercom system to work properly and/or the pathologist's failure to confirm the patient's state of anesthesia before discussing her case in the brusque manner that he did. My impression is that this claim would fail (but I'll be interested to hear if there are contrary opinions).

Third, by erasing the patient's memory, the anesthesiologist not only eased her emotional distress, he also erased some of the evidence that could be used against him. This raises legal questions about evidence tampering (e.g., obstruction of justice, spoliation of evidence) and factual questions about the anesthesiologist's mental state when he provided the injection. Obstruction of justice seems like a longshot (what upcoming judicial proceeding was obstructed?), but perhaps there is some evidence tampering-related offense or tort here. What's interesting is that the act which eases the patient's pain is the same act that eliminates the evidence. So even if the anesthesiologist could possibly face criminal liability, he could attempt to raise a choice-of-evils defense.

Those are some quick thoughts about the case (adapted from a future article in the new Springer journal Neuroethics). Feel free to add more to the analysis in the comments.

ClosetLibertarian (mail):
Very interesting fact scenario.

Seems likely that there is also some failure to disclose or report after the fact. Suppose the missing facts support an emergency exception to the required consent, after the emergency is over, there must be some duty to disclose what happened.

Finally, I doubt that talking frankly to a patient is actionable in any reasonable court. Some doctors don't have good social skills but what standard would you apply unless the talk is purposely cruel or untrue. Any examples of the reverse?
2.13.2008 9:34am
Willie (mail):
I wonder if the CIA, etc. know about this ...
2.13.2008 10:06am
Temp Guest (mail):
A question for psychologists out there: I wondered whether a patient in this situation might retain some partial, unconscious memories that something horrible was happening to her and she was going to die. If this is possible, it could lead to severe and possibly untreatable emotional and psychological distress whose underlying causes might never become clear to a psychiatrist or psychologist who was attempting to treat the woman later.
2.13.2008 10:17am
William Oliver (mail) (www):
I haven't read the link, but from your post, I don't see what the issue is. Perhaps you are unaware of it, but the application of drugs that stop the transfer from short-term to long-term memory are routinely used in anesthesia. For instance, most people remember "waking up" in the recovery room or their hospital room after surgery. Most are unaware that virtually all patients are awakened in the OR at the end of surgery (and if you think about it, it would be malpractice to routinely remove a patient from the OR without making sure that they could wake up).

Part of the anestheologist's job is to manage the behaviors of the patient in the OR -- whether that be respiration, muscle tone, or distress. And that means managing their mood and cognition. Anesthesia, by definition, involves all of this. Anesthesia does not involve just (or even) stopping pain impulses from the limbs; it also involves management of how we process pain in the central nervous system.

I remember when I was a medical student, I had a malfunction while skydiving and broke my right leg and ankle. I went to the ER of my medical school. My anatomy professor was on call for orthopedic surgery. When he was called, he asked to talk to me. After telling me I was an idiot for jumping out of a perfectly good airplane, he told me that he wasn't coming in to put my leg together until Monday (it was Saturday). He was more comfortable working with his regular OR team, and it would mean a better surgical outcome, and besides, he had things to do.

I said that my leg hurt, goddam it, and was pointed funny. He said "Don't worry, I'll fix it so you don't give a shit." (his words). They wheeled me into an xray room for an internal fixation and filled me full of drugs, including IV valium and demerol. The resident then started trying to make my leg vaguely straight. I remember thinking "Wow. This really hurts. But you know, it's no big deal." I "hurt" but felt no distress whatsoever. The drugs I was given did *not* stop the pain, but instead just stopped me from *caring* about the pain. Further, of course, the bucket of benzodiazepines they gave me also made virtually all of that weekend a vague blur.

That's what anesthesia is. The actions on affect, memory, etc. are part and parcel.

While the patient may have preferred a local anesthetic whose primary effect *is* on the peripheral system, essentially all consent forms say that the physician can put you under if necessary. It is not uncommon for procedures to go wrong in some way and to require transition from local to general anesthesia. You can't negotiate that on the table. You can't do procedures on a patient that is distressed and flailing about, or threatening to. The anesthesiologist was not doing anything that was outside of his or her mandate.
2.13.2008 10:24am
Don Miller (mail) (www):
I work part-time/volunteeer with our local ambulance agency as an EMT.

One of the drugs our paramedics carry is Versed (generic name Midazolam). It is a pretty good sedative, but the reasons we use it is it is an amnestic with a short half-life.

We use it when we are about to do things the patient won't want to remember. For example, splinting a broken bone, moving someone with a hip fracture onto a backboard. In one case, we were going to have to lower someone straight down a stairwell to remove her from the residence. She was afraid of heights and in a lot of pain. Some morphine for the pain and Versed for the stress and she was good. I talked to her a few weeks later and she was very happy. She remembers the paramedic trying to call her down. He told her that he was going to give her something so she wouldn't remember what we were about to do. She was awake and conscious the whole time, but she didn't remember the next 20 minutes while we moved her.

Since this drug is pretty commonly available to paramedics all across the country, I would be suprised if I was in the only agency that ever uses it this way.
2.13.2008 11:04am
gasman (mail):

In addition to its anesthetic effects, propofol "erases" (that's a direct quote) the patient's memory of events that precede it by a few minutes.

Maybe, but more often not. Based on 15 years of practice.

The communication scenario is not atypical, and physicians don't always utilize tact or hedge words when speaking with each other in order convey information clearly, quickly and unambiguously. There can be no intentional harm for inflicting emotional distress on the patient because there was no intent. Further, she was conscious at her own insistence and as a result was on notice that she could hear, smell, feel, see unpleasantries that are part of the operating room experience.
Did the anesthesiologist do wrong by trying to calm the patient pharmacologically? I don't think so, as that was part of his mission agreed to by the patient. Since not every contingency can be addressed in advance, such as the patient freaking out to an unplanned bit of information, then that's where professional judgment comes in. That is, the anesthesiologist cannot in that moment have the patient make a calm reflective decision in an informed manner in her new state. He must decide as best as possible what her decision might have been based upon his gestalt of her wishes expressed prior to the operation. That's why medical consents always have a line about the doc doing what's right while the patient is not able to participate in a decision.

After all, would you feel that your autonomy had been validated if after your gallbladder surgery you were told that there was a bad ass* looking kidney tumor still inside because they had to get your permission first before taking it out? There's always going to be something whether minor or major that is unexpected in the complex realm of health care.

*bad ass = invasive, aggressive growth, looks malignant, probably compressing some important nearby bit of anatomy. The only thing worse to have is something "...interesting, quite possibly publishable."
2.13.2008 12:49pm
Kenvee:
gasman:
After all, would you feel that your autonomy had been validated if after your gallbladder surgery you were told that there was a bad ass* looking kidney tumor still inside because they had to get your permission first before taking it out?

Actually, I'd fully expect that part of the preop procedures would include a discussion of what would be done if they discovered other problems mid-surgery, and if my directives weren't followed, I would be pretty damned pissed off. There may be more risks or side effects of one type of procedure versus another, which is why we require informed consent. We don't just tell doctors "oh, just open me up and do whatever you feel like." Unless it's a question of you will immediately die because they left the tumor there, they should have consent for it.

I'm pretty horrified at the idea that a doctor could decide to just inject someone to take away their memory to cover up a mistake he made. That's a very dangerous path to start down.
2.13.2008 12:59pm
Mary Katherine Day-Petrano (mail):
Seems like to pretty simple issues. One is if only the doctor and the anesthesiologist were in the room with the patient, and the patient is induced to not remember anything, then how would she or her family members disscover about what occurred there? Obviously it would be against the doctor's interest to tell, and very liekly also against interest of the anesthesiologist.

But, assuming we get over that hurdle, then once there is an admission of spolication via memory erasure, it seems relatively straighforward to state the elements of a State law spoliation claim, prove it, and draw the adverse inferences against the spoliators.

Spoliation claims are very intersting, and not something I remember being taught in my law school. I am amazed at the number of Florida attorneys on opposing sides who do not have an understanding of spoliation claims, and as a result let their clients/witnesses send writings or testify under oath on the witness stand all about how they have spoliated evidence. Of course, then, those who know how to litigate spoliation claims have a hay-day with the dummies on the other side.

I think next to Title II of the Americans With Disabiltiies Act, spoliation jurisprudence is one of the least taught, but most useful areas of the law one can know. This is an intersting fact pattern that stretches the imagination in the area of applying adverse spoliation inferences.

I imagine from a defendant's perspective, it is rather like the lay defendant learning for the first time about res ipsa loquitur.
2.13.2008 1:04pm
MDJD2B (mail):
I'll second what others have written. Doctors cure illness and ease suffering. In an emergency, they do this reflexively.

Before I went to law school, I wouldn't have conceived of there being an issue wit this. It never would have occurred to me that someone would raise questions about alleviating physical and psychic pain during a procedure.

I still don't know that there is a serious question, though it doesn't hurt to examine assumptions. The thought that peple should be allowed to suffer so they can sue someone for the suffering is bizarre (at least to me-- Anne in the last post seems to feel differently).

Could these medicines be abused? I suppose so. Here's an unlikely hypothetical. Say a patient is lying in a large recovery room after a minor procedure almost ready to have his IV out. An employee of the surgical center makes some highly derogatory, HIPAA-protected remarks in earshot of the patient. ("I get nervous assisting on vasectomies on bisexual jerks with AIDS like Mr. Smith." The doctor immediately give Propafol so the patient does not remember.

That is abuse.
2.13.2008 1:07pm
Mary Katherine Day-Petrano (mail):
MDJD2B, interesting insight. I suppose a HIPPA blurt out could occur, as you say. But what good would it do to erase the memory of the hearer of the unauthorized HIPPA disclosure? The HIPPA violation occurs by the fact of the unauthorized use or disclosure, not the effect on the hearer or some publication rule such as in defamation. Also, erasing the memory of the hearer would make things so much more complicated, because then by erasing the memory of the hearer who would be a material witness to the fact of the unauthorized HIPPA disclosure, there would be a spolliation, woudl there not?

I'm just observing ...
2.13.2008 2:23pm
MDJD2B (mail):

who would be a material witness to the fact of the unauthorized HIPPA disclosure, there would be a spolliation, woudl there not?

Yeah-- that was my point. That would be memory erasure not to help the patient, but to cover evidence of a violation. My point was that it was unlikely, and that this sort of situation was to be distinguished from the usual situation where the doctor is trying to ease pain.
2.13.2008 2:42pm
Storkdoc (mail):
Kenvee,

What other problems are we to talk about. Everything that can occur in medicine? The point that gasman is making is that things that are totally unexpected can show up during surgery and need to be addressed.

About 4 years ago, I did a hysterectomy on a patient whose uterus was the size of a full term pregnancy. When we got that out. I palpated a small hard area near the head of the pancreas. I called in the general surgeons and they excised a small bowel tumor (cancerous) Should I have left that alone after finding it and letting her have another surgery?

Not every unexpected event can be forseen. And to try and cover everything would require that an informed consent process that would take all day.
2.13.2008 3:15pm
Kenvee:
Storkdoc,

I assume you at least cover the basics of "sometimes other things can come up during surgery. If I find something that isn't life-threatening but it would be helpful to take it out now instead of having another surgery, would you want me to do that?" You don't have to go into every possible thing that could go wrong, but at least cover the basic scenario and different reactions to it. (Do it if you think it's best, do it if it's life-threatening only, do it if X conditions are met, consult with my husband/wife/mother/power-of-attorney-holder in the hallway, etc.)

MDJD2B, I agree that doctors are supposed to relieve physical pain during a procedure. I think for a doctor to take it upon himself without any consultation that it's just "better" for me to not only not know about something but erase my memory of it is WAY beyond that line.
2.13.2008 4:45pm
gasman (mail):
Kenvee,
We're not talking about tying off the fallopian tubes of a woman undergoing emergency abdominal surgery because we think she has had too many children. Sometimes anything can happen. If you need CPR do you want me to first talk to your next of kin or should we perform the invasive, sometimes damaging chest compressions, cardioversion, and drugs that sometimes result in a saved life? Because you know the best we can do when there is no time to ask in a calm reflective manner because the opportunity to have a positive outcome is waning, is provide the care that a 'reasonable person' might want under the same situation. It sounds like you might not fit the profile of the typical patient whose wishes we attempt to model when for lack of available timely guidance action must be taken before opportunity is lost. So I recommend you actually read the consent documents, and discuss with your docs that you have expectations that lie outside the norm. Sure, it is the doc's responsibility to ascertain this information from you, but if it is important to you, not just spouting off, then you will see to it that the discussion occurs until you are satisfied your wishes are clearly communicated.
This might be hard for many outside of medicine to grasp. But opportunities can sometimes vanish in hours or minutes, or mere seconds. Those in aviation, the military, policing, and even the teenage lifeguard will recognize that sometimes the guy lowest on the hierarchy must make critical decisions without first checking with the office.
I appreciate that decisions people make on my behalf are important and suspect that I have been the beneficiary of many actions of which I have never been aware. A society runs when people look out for each other while doing their job that keeps the whole thing running. I suspect you would be quite unhappy with a world if nobody ever did anything for you without first checking if it were OK.
2.13.2008 6:27pm
michael (mail) (www):
The anesthesiologist decided to inject the patient with an anesthetic called propofol. In addition to its anesthetic effects, propofol "erases" (that's a direct quote) the patient's memory of events that precede it by a few minutes.

Perhaps we have 2 lines of discusion going on here. One is with regard to the neuroscience of memory; another is with regard to informed consent and intent of the anesthesiologist. I note in the above sentences I only come to the statement, 'The anesthesiologist decided to erase the patient's memory,' by elision. Versed or propofol is typically viewed as a 'short acting benzodiazepine that can be used to control agitation.' The anesthesiologist, given that frame of mind, and needing not to have a patient racing out of the OR bleeding from a neck wound, not to mention ripped out IVs, may have quickly used it for that purpose. The subsequent events make this a nice scientific case study for dissecting memory and thus discussed. Thus the same event occurs in two different universes analytically speaking.
2.13.2008 7:50pm
R. Richard Schweitzer (mail):
Damnum absque injuria?
2.13.2008 11:38pm
Elliot123 (mail):
Are there any drugs which will "erase" more than a few minutes? Hours? Days? Weeks? Years?
2.14.2008 12:14am
neurodoc:
Propoful is GREAT stuff. The lights go off and the lights come back on. One is left with no memory whatsoever of the colonoscopy, only the unpleasant business of prepping for the procedure. (And propoful can be a blessing for those who suffer through extended ICU stays. No the sort of memories one cares to preserve.)

Lawyer story: I know a P med mal attorney who thought the extra fee for an anesthesiologist excessive, so he told the gastroenterologist he would have the procedure without anesthesia. The doctor could not dissuade this fellow, so acceded to his patient's wishes. The attorney thought better of it all once the procedure was under way, but toughed it out and now tells the story as a testament to stubborness and stupidity.

Not damnum absque injuria in the lady's case, since no damnum, let alone injuria. The facts in this one wouldn't come anywhere close to nelgigent infliction of emotional distress, IMO. Only in response to a law school exam question would one bother to discuss such a non-starter, and the answer should focus on why it would fail as a cause of action.
2.14.2008 5:13am
Kenvee:
Storkdoc,

You don't seem to be addressing my actual question. I specifically said that you don't need to address every possible specific thing that could go wrong, but I've NEVER had a single medical procedure where there wasn't a general discussion of potential things that could go wrong and the reaction to them. Some people choose to have DNR orders, so some people may choose for you NOT to start CPR under the situation you describe. Me, I'd go for "if it's immediately life-threatening, take care of it". Other decisions would have to be based on my medical condition at the time and what complications might be foreseen. If it's something totally unrelated to the condition at hand and not about to kill me if you don't do anything, like the tumor you described originally, then it IS something you can consider and discuss with my next-of-kin if that's what I've asked you to do. I don't think this is unreasonable. Other people may say "do whatever you think is necessary", and I might say the same under certain conditions. But it's something that should be the patient's decision.

No one's asking doctors not to do emergency life-saving actions, but where there's time, I think it's irresponsible to just go ahead and do whatever you want without any kind of prior consultation and consent.
2.14.2008 10:18pm