A 38-year-old construction worker who suffered a head injury on the job was sedated and given a rectal exam against his will, says the New York Times.
The patient was taken to to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, given 8 stitches on the head, and was told he would need a rectal exam to see if he had a serious spinal injury.
He refused.
He adamantly objected to the procedure, he said, but was held down as he begged, “Please don’t do that.” As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth.After Mr. Persaud regained consciousness, he was arrested, then taken — still in his hospital gown — to be booked on a misdemeanor assault charge. Gerrard M. Marrone, who was Mr. Persaud’s lawyer, got the criminal charges dropped, then helped Mr. Persaud file a civil lawsuit against the hospital.
“Psychologically, it changed his life completely,” Mr. Marrone said of the episode. “He hasn’t been able to work. He has absolutely no trust in the system at all: doctors or the police. He has post-traumatic stress syndrome.”
The hospital denies wrongdoing and will probably argue that because the patient suffered a head injury, they could not be certain of his mental state. The patient says that he clearly refused and that his rights were violated. The trial is scheduled for March 31.
Forced Rectal Exam Stirs Ethics Questions [NYT]
(Photo:Getty)
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Ok assuming the rectal exam is a valid diagnostic for a spinal injury, and assuming that the construction worker could be deemed as not competent to make the decision on the exam.
Does anybody else find it real odd that the hospital staff would get into a wrestling match with someone that may have a serious spinal injury?
If the patient starts to fight over the finger up his ass, you simply back off and tell him you need to give him an antibiotic or pain killer shot. Load the needle up with some night night juice and then probe to your hearts content.
Refusing a rectal exam does not make you homophobic. For all you know the man could have an inflammatory bowel disease that makes a digital exam painful as hell or he could have just been thinking “what does a cut on the head have to do with my asshole?”
As for the PTSD, BULLSHIT. If he said he could not work because the guys were harassing him and calling him Peter Griffin, I would believe that.
Not getting a full story. If I pull up on scene to a fall and the guy has no idea where he is or what he was doing before he fell he’s getting strapped to a backboard and sent to the ER. Then you also have altered mental status that could be from the fall, alcohol, low blood sugar or a combo of the two that led up to the fall.
Wish I would use my last rectal exam as an excuse to sue for millions.
This same “victim” would probably have sued the same doctor if he didn’t test for a spinal injury. Personally, I agree that nobody should have to be tested for prostate cancer. But then should that person develop prostate cancer, neither insurance nor the government should be required to spend one penny treating it.
Ladies and gentlemen, we have a Peter Griffin here.
COME ON. What a damn retard. It’s just an exam. To check if you have SPINAL INJURY. Let’s see, you could be paralyzed forever, or you could have a finger up your ass for 10 seconds. Wow. I wonder which you should choose.
@brent_w: It’s not rape. I would support the doctor if the vaginal exam was an emergency like in this case. He was in an EMERGENCY ROOM. when you are in an EMERGENCY ROOM with a ton of EMERGENCY STAFF, you have to allow all exams. THEY know what they are doing, you don’t. Potientially this could’ve saved his life, and their job is to save your life.
And if it wasn’t justified I’m sure that other members of the staff would’ve stopped this.
Man, that’s nasty.
But [www.youtube.com]
At my very first gynecological exam I had a forced rectal exam to which I refused consent, then begged the doctor to stop, then started screaming so loud it finally brought in the nurse, who stopped it.
It was SIX YEARS before I could go back to a gynecologist, I threw up three times before the exam, and I have to be on antianoxics to manage it without hysteria (just crying).
Unfortunately, as it was my first time, I didn’t know that wasn’t “normal” and everyone kept telling me, when I tried to express how freaked out I was, “nobody likes gyno visits, get over it.” I was too young to know it was medical battery.
Sure, it’s “just” a normal medical procedure. But when your doctor BATTERS you when you’re in your teens, receiving your first gynecological exam (which, yeah, nobody really does enjoy) … well, it’s scarring.
I love how the lawyer came up with his own diagnosis, and how the guy “doesn’t trust the system” yet he trusts his laywer.
@padams89: “he was under what is called implied-consent because of his head injury.”
Woah, there is clearly NO implied consent! Implied consent is when you take yourself to the doctor’s office; it’s implied that you consent to basic procedures such as having your temp and BP checked. Head injuries and unconsciousness do not give informed consent! In truly emergent situations where it is truly life and death, doctors may proceed without consent when the patient cannot consent IF THERE IS NO ONE AVAILABLE TO GIVE CONSENT.
If this guy was still talking and not in imminent danger of death, they needed to get a psych eval, talk to his medical decision-maker, or compel through the courts.
@Mercurypdx: In any of those situations, if the patient refuses consent, the doctor cannot proceed. It’s really very simple.
@padams89: It won’t, unless he was bleeding out on the floor. Legally, emergent situations in which doctors can override patient consent when mental state is in question are limited to literally imminent death.
With a suspected spinal injury, typically the patient can be made to lie still until treatment decisions have been made, or a medical decision-maker is located, or a court order compelling treatment is acquired.
I teach medical ethics, and I am a lawyer, and if I were THIS hospital’s lawyer, I’d probably be revoking this doctor’s privileges, since overriding even questionable patient refusal to consent is a malpractice maelstrom. I’d also be sending the entire ER staff to liability training sessions, since clearly somebody missed something. And as a practical matter, I’d probably be settling. I simply don’t see a legitimate legal defense for this doctor’s actions, and chances are good he’ll end up before the state ethics board anyway.
@padams89: “the judgement of incompetence was by no means blind, it was in accordance with the law and standards of care”
No, it is not, as there is no mention of a visit to the friendly neighborhood courthouse for the legal declaration of incompetence.
@aaydemi: “The real question is whether he was “competent” or coherent enough in the state that he was in to make that very serious decision for himself. When in doubt, you have to play the numbers.”
No, when in doubt you obey the law. Stitching up the cut is probably defensible, since active bleeding typically is emergent enough to allow care without consent. But the spinal injury was NOT emergent and the patient clearly refused treatment. Whether or not he was competent to do so, that is the point at which a medical professional with any sense calls in the consults, including the lawyers. (This is one of the things my husband does, answer calls from the hospital in cases of questionable consent and competence.) It’s an enormous breach of medical ethics and hospital procedure for him to proceed in a case of questionable consent.
This is a no-win situation.
The doctor had to do a rectal exam to make sure he wasn’t missing anything that required immediate treatment.
The patient very much opposed to having anything inserted into his rectum. But because he had a head injury he was not allowed to refuse treatment.
Sedation was the only way to resolve it. But that’s risky with a head injury, so they couldn’t do it until it was the last option.
I do disagree very much with charging the guy with assault. It’s too bad the doctor was punched, but I think most people would start kicking and swinging their fists if they were forced to submit to any medical procedure against their will. (Especially if they’re not reacting completely rationally because of a head injury.)
@Eyebrows McGee: That sounds like a traumatic experience, I’m sorry. But that does not relate to this situation. First of all, this guy was not a kid. He was an adult. He should understand it’s a medical procedure. Second of all, you were there for a routine check, he was there with possible spinal injury and possibly not in sound mind.
Put yourself in the doctor’s shoes: would you let a person walk away with a potentially life threatening spinal injury (which he would undoubtedly sue you for, and win) just because he is squeamish about his butt? No sane doctor would. It’s their job to make sure you’re physically healthy before they worry about your feelings.
I have to go with the patient on this one. The doctors forced the issue, used the excuse that he wasn’t mentally conscious enough to object, yet obviously mentally conscious enough to punch a doctor.
The doctor escalated the issue by bringing in the police.
The patient gets a head injury.
The patient refuses treatment.
Doctors try to force treatment.
Patient hits doctor.
Police are called by doctor.
Man gets assault charges, etc.
The guy didn’t ask to have a head injury, yet immediately there are calls of ‘frivolous’ when this guy’s entire day wasn’t exactly what he planned and the police/doctor has something to do with that.
If you’ve never been arrested/dealt with police you have no basis for comparison on how this can ruin your day based on their abusing authority.
@Eyebrows McGee: I’m sorry for the trauma to went through. Sounds like it helped shape your career choice for the better.
All along, I’ve been interested to hear a valid legal opinion, as opposed to the legal opinions of medical people. Thanks for the input.
It’s very disheartening to see how many people are calling him homophobic, or telling him he should just get over it, or that he had to submit to the exam. The former have no compassion, and the later have no clue.
@Eyebrows McGee: Oh boy, more lawyers to call up. You mean every ER doesn’t have a lawyer on staff already? Clearly, they need one.
People here are confusing different levels of conpentcy. Medical professionals use a standard that is different than what criminal and even civil courts use.
Any patient with any injury or condition that is/or may effect their level of consciousness, in this case a head injury makes them generally unable to refuse emergency medical care. This is regardless of them being alert and oriented as CHMBOB had previously noted.
Once it is determined that they don’t have a life or limb threatening condition AND they are not intoxicated, mentally incompetent or we have not given them medications to alter their judgement, they can refuse treatment.
As a side this one will be hard to defend as we generally give paralytic medications when we place a breathing tube, which kind of makes checking tone pointless afterwards.
@Will Clarke: “Put yourself in the doctor’s shoes: would you let a person walk away with a potentially life threatening spinal injury (which he would undoubtedly sue you for, and win) just because he is squeamish about his butt?”
You’ve presented a false dichotomy. There were FAR more choices than “let him walk away with a spinal injury” and “force him to suffer an unconsented exam.” The doctor could have allowed the situation to cool slightly and come back to explain the necessity of the exam when the patient was calmer. The doctor could have offered an alternative caregiver (people may be uncomfortable with a person of a particular gender giving them pelvic-area care). The doctor could have called a psych consult, a legal consult, a spinal consult, even a proctology consult.
And no, if he signs out AMA after refusing a particular treatment, he is not going to sue you and win. He may sue you, but he will lose. If you perform an unconsented exam, he WILL win, and you may lose your license.
And if his mental state was in THAT much question that they were afraid to let him sign out AMA, they should have already had social work down there and on the phone with the man’s medical decision maker and/or the legal department.
I understand where you are coming from, that most of us when in the ER are thinking, “do whatever the hell you need to do!” I am too. I also understand that television seriously muddies the waters, since on ER they’re never seeking consent for procedures that (at a real ER) do require consent, even paperwork. What this doctor did was NOT normal procedure, and ever doctor in practice today knows that “best interest of the patient” does NOT override lack of consent.
Either this doctor is very badly trained w/r/t his ethical and legal responsibilities, or he’s a loose cannon who doesn’t care, or (most likely) he was having a bad day (was in a hurry, had too many patients, there was a MVT rolling in) and just went ahead with the exam even though he knew better, betting on the fact that most patients don’t object when you don’t get proper consent. That’s a bet he lost. (Or he simply acted unprofessionally; medical professionals faced with recalcitrant patients do occasionally lose their tempers and force patients.)
In any case, a doctor simply cannot proceed without consent unless someone is actively dying without immediate intervention (and sometimes not even then). The boundaries of this are a major (and somewhat emotional) issue in emergency medicine. It’s a hot topic. Either he did know the boundaries and violated them (for good or bad reasons), or he did NOT know the boundaries and probably shouldn’t be practicing, at least not in an ER.
@burgundyyears: “Oh boy, more lawyers to call up. You mean every ER doesn’t have a lawyer on staff already?”
Most have a combination of in-house staff and farmed-out work. It’s fairly common to farm out competency and guardianship to law firms while managing corporate issues and preemptive liability issues in-house (that is, structuring procedures and training staff and so forth). Competency and guardianship generally require a trip to the courthouse, so it’s usually faster to have a litigator do it than a corporate attorney who has little courthouse experience. But it depends on location and needs.
@misstic: i thought the exact same thing
@cwalters: @mercurypdx: Ohhhkay so maybe I needed to proof read that a little better! I was at work and just trying to relate my experiance quickly. Thanks for making me feel all dirty about it…
I just had another thought. If the man was so out of it that a forced exam was justified then how in the world could they charge him with assault? After all he was supposedly “out of his mind”.
The victim ought to see if it’s possible to pursue criminal charges against the doctor. Assault, at least; possibly even rape, depending on how it’s defined.
Whether the procedure was medically necessary is irrelevant; if the patient refused, that’s it. And surely there are other ways to check for spinal injury… x-rays or CT scans would show the spine, would they not?
I feel that this man was definitely mentally incompetent because any mentally competent person would enjoy the sweet subtle pleasure of a rectal exam!!!!
@Eyebrows McGee: Any citations or state-law qualifiers to all this knowledge?
@trollkiller: Must be why the charge was dropped, right?
I think the guy was mentally inapt because it was something that could’ve potentially SAVED HIS LIFE and he made a fuss about it. Why show up to the emergency room then? I hope they missed something and he gets what he deserves.
Seriously.
What about when a woman is getting a pap smear and the doctor just *decides* to do a rectal exam and “warns” you AS HE’S DOING IT! There is no need to do a rectal exam during a pap smear, or if there is they need to warn you ahead of time. I’d like to punch doctors who do that. You go in to the doctor’s office all nervous in the first place because of what is going to happen, but you don’t expect a rectal exam. I feel like that’s rape too.
Doctor Forces Rectal Exam, Patient Punches Doctor, Police Arrest Patient, Patient Sues
The Aristocrats!
Sounds like the guy got what’s called the “asshole intubation” (you are being a violent/unruly/uncooperative asshole, therefore you are going to get intubated and sedated for convenience). However, without seeing what the guy looked like at the time, it’s impossible to point the (stinky) finger of blame. People with traumatic brain injuries can be violent and combative and assessment of the rectal tone is an accepted part of the neurological examination.
If the guy fit the medicolegal definition of competency at the time, then he had the full right to refuse the rectal (no need to sign any papers) and doing it against his will in fact constitutes assault in the full criminal sense of the word. If he was altered and confused and lacked the capacity to make his own medical decisions, the exam could be legally forced upon him if it was deemed emergently necessary.
Btw, the process of ascertaining capacity to make medical decisions has nothing to do with being alert and oriented. The patient has to understand and explain back to you the risk and benefits of the procedure, the risks of not having the procedure done, and his rationale for refusing the procedure. Sounds like the decision was made that the patient lacked capacity but it is unclear if the actual assessment of capacity was performed.
@Eyebrows McGee: I’m very impressed that you are a lawyer and teach medical ethics. As a healthcare provider, I have extensive training in implied consent (which you incorrectly defined) as well as ethics.
Allow me to quote an EMT textbook as it defines implied consent as well as refusal of treatment rights. For the record, the text is Mosby’s EMT-Basic Textbook Revised Second Edition by Walt Alan Stoy, Thomas E. Platt, Debra A. Lejeune, and the Center for Emergency Medicine Published 2007 by Elsevier Inc. ISBN: 0-323-04765-3
On Implied Consent:
“Implied consent assumes that all responsive and rational patients suffering from an immediately life threatening or disabling injury or illness…” such as head trauma or possible spinal injury, “…would want to receive treatment and would provide expressed consent…” the type of consent that occurs when you go into a doctor’s office, “…if they could. Therefore, implied consent applies in cases where the person requiring treatment is mentally, physically, or emotionally unable to provide expressed consent. Lifesaving measures should never be withheld because doing so would be likely considered negligence.”
On Children and Mentally Incompetent Adults:
“Patients who are under the influence of drugs or alcohol and those who have a diminished level of consciousness because of their injury or illness may also be unable to make rational decisions.”
On Refusal of Treatment and Transport:
“The EMTs must be sure that the patient is not suffering from a mental impairment, either temporary (induced by drugs, alcohol, or the current illness or injury) or permanent (such as a mental illness), that prevents making a rational informed decision.” Later in this section, “If that patient has a life-threatening condition and you have any doubt about the patient’s ability to understand risks of refusal or about the soundness of the patient’s judgment, you should provide care.”
For your reference, in the same text, expressed consent is defined as:
“Expressed consent, also known as actual consent, means the patient directly agrees to accept your treatment and gives permission to proceed with it. In short, the patient expressed desire for treatment”
As you can now see, you definitions were off. And you are incorrect about your prior claim that a psyc consult is required and that a trip to courthouse is required. Please know the laws and be able to cite them specifically or quote them before using the lawyer card to try to make people think your opinion in infallible.
As a side note, I am sympathetic to your negative experience and sincerely regret how that experience affected your view of the medical community. On that same note though, although your experience is troubling, I personally do not think it relevant to the discussion at hand.
Now now folks, those poor docs couldn’t be certain of his mental state! The only way to find out was to poke a finger up his bum! They’re doctors, surely they must know what they’re talking about!
@padams89:
The head injury was already seem as not life threatening, they wanted to check to see if there was any spinal damage. Oddly, that is not the way one would expect for such a thing to be checked. The guy refused, they could have at that point got a psych consult, they made a bad choice and will end up paying.
Doctors always lose either way
Damned if we do, damned if we don’t.
Rectal tone and “anal wink” is the first reflex compromised in cord compression injuries.
If the doctor didn’t do the exam, he would have just as easily been sued.
A complete trauma work up with primary and secondary survey includes a rectal exam.
So the next time you get a big medical bill, blame lawyers of America.
That is total bullcrap. So you can only rape somebody with your penis? If I violently shove a metal pipe inside somebody’s anus, that isn’t rape? All those female prisons where women are raped by fellow female inmates… turns out none of them were rape afterall, since none of them had a penis? You can use your fist, a knife, a board, a stick, or anything and as long as its not a penis, it isn’t rape?
Rape is about somebody putting ANYTHING inside you against your will. It is about taking away somebody’s power and forcing them to take something that they do not want.
We entrust ER doctors to make quick, informed decisions that frequently save people’s lives. Head injuries often affect one’s judgment. If the Dr had acquiesced and the man ended up paralyzed, you can bet there would be a lawsuit for negligence. The allegation of rape is ridiculous.
@padams89: “In addition even if the doctor continued to treat after a competent patient refused or withdrew treatment, the patient does not have the right to either assault (threaten physical harm) or batter (actually carry out physical harm) on the doctor. He may choose to forcible resist but that can NOT involve attempts to harm the provider.”
Okay, I’ll bite that he doesn’t have the right to hit the doctor, and that it may be wrong, but can you blame the guy? He’s lucky he only got hit once. If I had a treatment forced on me I’d make sure the doctor spent plenty of time not practicing and have plenty of his own fingers to eat. There’s no way in hell I’d let him get away with it, and if I sat on that jury there’s no way I’d let charges go through on him.
@padams89: The possible spinal injury was not immediately life-threatening and he objected vehemently to the point of begging. Whether or not a possible spinal injury would NORMALLY be something you treated w/o consent, you certainly don’t treat once he objects.
Also, as you may not be aware, rules for EMTs are different than rules for doctors, because EMTs treat ONLY emergent situations, in the field, with limited diagnostic tools, limited treatment options, and limited time available.
Frankly if he were my client, I wouldn’t even want to take the case.
A textbook isn’t the law, as I’m sure you well know. For the law in my jurisdiction, you may start with 755 ILCS 40, 755 ILCS 43, and 755 ILCS 45, but as I’m sure you’re aware, most implied consent issues come through case law, and I’m not going to spend my morning digging that up when I have classes to teach.
As for my experience, I’m sorry you can’t be bothered to read the entire thread, but it was relevant to those who said rectal exams were nothing to get upset about, even if they were forced. And it didn’t affect my view of the “medical profession,” just that particular doctor. Please don’t make assumptions about my internal mental state.
we force circumcisions on infants and that’s permanent but no one cares, the medical community is so corrupt