[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.