Doctor Forces Rectal Exam, Patient Punches Doctor, Police Arrest Patient, Patient Sues

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)

Comments

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  1. Silversmok3 says:

    Just wait until Mr. Persaud gets the medical bill…..

  2. johnperkins21 says:

    Unable to work my ass. How does getting a rectal exam make him unable to work? There’s no way in hell this caused him that much pain and suffering, he’s just using the system.

    They shouldn’t have forced the rectal exam, and having the criminal charges dropped is the most this guy should get.

  3. KingPsyz says:

    Just wait til the hospital gets the insurance bill after they have to pay out a few million…

  4. clevershark says:

    Wouldn’t it have been easier to take an X-ray?..

    Maybe the world really is starting to resemble Family Guy in odd ways.

  5. @kittenfoo: And if the Dr. didn’t do the exam, and the guy ended up having injuries leading to his being unable to work, trust the system, and suffering PTSD, you’d be asking for the same thing I bet?

  6. bunnymen says:

    Isn’t this a Family Guy episode?

  7. @johnperkins21: An exam while he was sedated? I don’t even think colonoscopy patients get that luxury.

  8. savvy999 says:

    A reasonable analysis of his situation could have been obtained without checking for “rectal tone.”

    Who knew, my ass could sing? Deep baritone, no doubt.

  9. A reasonable analysis of his situation could have been obtained without checking for “rectal tone.”

    Is that like a dial tone?

  10. NightSteel says:

    I thought it was bad to sedate patients with head injuries..

  11. Adam Rock says:

  12. MercuryPDX says:

    “That thing better have numbers on it!”
    – Old punchline

    “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.”

    Oooooo. I’ll take “frivolous lawsuits” for $200 million Alex.

  13. DojiStar says:

    Head injuries are generally cleared by a CT scan.

    WTF does a rectal exam do? Plus the hospital can bill a $1000 for the CT. What does an a$$ probing cost get billed at.

    Jeez doc, you make more dough the CT not the butt probe. Get with it!!

  14. ornj says:

    Instead of punching a doctor he should have tried his hardest to clear his bowels.

  15. @DojiStar: It checks for rectal tone. I wonder if you can tone your rectum like you can get toned abs?

  16. SVreader says:

    What if someone declines a much-needed emergency treatment, but isn’t in his or her right state of mind (traumatized, head injury, etc) at the time, the doctors don’t perform the treatment, and the patient suffers because of it? Can he/she then sue? That’s more the reverse of this situation–just curious.

    Having been in the hospital recently myself–I felt so out of control there. There were times where I was asking them to stop poking me with needles (they couldn’t get the IV in), but I was really out of it, and really needed the IV.

    But what if I had really, really wanted them to stop trying it? I don’t think they would have…should they? It gets into tricky territory.

  17. JayXJ says:

    @GitEmSteveDave: Rectal tone? Isn’t that where the expression ‘talking out your ass’ comes from?

  18. jtheletter says:

    @johnperkins21: Last I checked, unwanted forced penetration of this nature is called ‘rape’ even if you are a doctor. Further repercussions are required.
    @ GITEMSTEVEDAVE: There are *other* methods of checking for spinal damage. Your false dichotomy does not prove any point.

    I doubt anyone did a psych eval on this guy before forcing this exam on him, without one they were at best shooting from the hip when claiming he might have been mentally disabled at the time because of the injury. I wouldn’t expect that excuse to hold up in court. Yes, doctors are more knowledgeable about medical conditions, however even then they still have to verify conditions, not just “guess” someone “might” be incapable of making decisions.

  19. But seriously, apparently, your sphincter dows not react “normally” if you have a injury. I found this which supports the Dr.

    [books.google.com]

  20. SVreader says:

    @svreader: Oh, and I realized the treatment in the article probably wasn’t desperately, but I was wondering more generally.

  21. stinerman says:

    @johnperkins21:
    Haven’t you heard of the “gay panic” cases? It goes like so:

    A gay person finds you attractive and decides to hit on you. Being the ignorant, homophobic person you are, you are completely and utterly scarred by the transgression and therefore have no choice but to brutally assault them.

    The defense argues some sort of mental defect that caused the assaulter to go postal on the gay person. It’s essentially an attempt to explain homophobia as a mental disease.

    The guy in this case probably had a really hard time letting a doctor get anywhere his rear end.

    That being said, he did not consent to the procedure, so I think he probably has (or at least should have) a good case.

  22. semanticantics says:

    Rectum? Damn near killed him!

  23. ideagirl says:

    whatever happened to “No means no?”

  24. @jtheletter: I agree there may be other ways, but sometimes a simple test is needed in the field/the ER. From what I read, this is a test that can be done to people of all ages. Shock is a funny thing, and can alter your judgment/feelings. I got my head hit with a rock, and until I saw the blood, I didn’t think there was anything wrong. I could have had a concussion, and not have even known it then.

  25. MercuryPDX says:

    @jtheletter: You are in for a rude awakening once you cross 40 and have to get a yearly prostate exam.

    If the hospital was smart, they’d say “We had to put him out because he became unruly. No one stuck anything in his anus.”

  26. samurailynn says:

    I don’t think the doctor should be able to perform an unnecessary procedure even if the patient was not mentally able to make the decision. It seems to me that if the doctor had suggested a different procedure, the patient would have accepted. For all we know the guy was anally raped as a kid and doesn’t want anyone to go back there for anything.

  27. waydownriver says:

    I have a lot of sympathy for patients having the right to refuse treatment.

    But post-traumatic stress syndrome? What a fucking lie. Give him $50 for his trouble.

  28. SadSam says:

    Can’t anyone refuse medical treatment (except for a psych. patient that’s likely a danger to themselves or others), you sign an AMA (against medical advice) form which protects the hospital and patient goes on their merry way.

  29. Rectilinear Propagation says:

    Having been in the hospital recently myself–I felt so out of control there. There were times where I was asking them to stop poking me with needles (they couldn’t get the IV in), but I was really out of it, and really needed the IV.

    @svreader: Couldn’t they have gotten someone else to find your vein instead of stabbing you a billion times?

  30. Rectilinear Propagation says:

    You are in for a rude awakening once you cross 40 and have to get a yearly prostate exam.

    @mercurypdx: No one is legally required to have a prostate exam. I don’t think doctors can force one on you.

  31. Me - now with more humidity says:

    Rectum? It nearly killed him!

  32. smitty1123 says:

    @bunnymen: No, this is actually funny.

  33. Shadowman615 says:

    @johnperkins21: The guy may be going overboard with his claim, but unfortunately that’s how the legal system works. Always ask for waaay more than you think you should get, because the defendant is going to try to weasel out of every penny.

    Think of it in terms of a negotiation: you always ask for higher than you think you will get, and the other site always starts with a lowball bid.

    All of that is secondary to the issue, however. The guy certainly has a right to seek damages for the hospital performing a procedure against his will/consent.

  34. RogueSophist says:

    @Me: A little late there, killer.

  35. Rectilinear Propagation says:

    You’d think they wouldn’t mind doing something else to check for injuries. An x-ray would 1) cost more money and 2) not require the doctor to put his finger in someone’s butt.

    Besides, if he did have spinal injuries wouldn’t they need to do an x-ray anyway?

    Post-traumatic stress may be reaching but I can’t imagine that being held down and drugged before being taken to the police station practically naked doesn’t cause at least a little stress.

  36. jtheletter says:

    @mercurypdx: A prostate exam is still voluntary, even at 40. No ones forces you to get one, in fact you’re welcome to never get one and accept added risk of not diagnosing cancer. This patient refused this exam. The tenuous argument is that he was possibly not in a state of mind to make such a decision. Until evidence is brought forth that he was not in a proper mental state then that argument holds no water. And since we see after the fact that there was in fact no brain trauma then anyone who says they determined otherwise had better have damn good evidence for making the wrong diagnosis in this regard.
    @GitEmSteveDave: I’m sorry, I must have missed the part where the hospital was in triage mode and incapable of choosing a more time consuming option to check for spinal damage. They apparently had enough free staff to hold down and sedate a construction worker.

  37. @jtheletter: It was an ER. And they are called security or the police.

  38. clevershark says:

    @Rectilinear Propagation: “No one is legally required to have a prostate exam.”

    No, but you’ll probably need to get a yearly one if you want to be covered by health insurance.

  39. Clarkins says:

    @GitEmSteveDave:

    I had a colonoscopy just months ago and they do sedate you during it. Unless you wake up in the middle of it, you don’t know it happened.

  40. Coder4Life says:

    @Adam Rock: Nice that is the first thing that came to my mind when I read this article. So halarious…

    And also.. I am sorry I am 23 and have had to do 2 of those because of a prostate infection I had while back ago. And they are nothing to get upset over. You are 38 get over it…

    The guys’ been watching too much TV. Specifically family guy…

  41. theWolf says:

    Mooooooooooooooooon river!

  42. Optimus says:

    @GitEmSteveDave: What is wrong with you? No doctor needs to examine your rectal cavity to determine the existence of a spinal injury.

    This is a clear cut case of rape.

  43. topgun says:

    “Look no hands….it’s magic!”.
    I’m not a fan of the medical establishment. Just spent a week there and it’s amazing what they charge, what they force on you so they can charge, and above all what they’ll settle for in payment if they’re part of your insurance providers network.
    As for: “Psychologically, it changed his life completely,” Mr. Marrone said of the episode.
    Yeah I’d be saying that too if there were lawyers involved. I wonder if getting the bills making you “feel like you just took it in the ass” qualifies?

  44. johnperkins21 says:

    @GitEmSteveDave & stinerman & Shadowman615: I’m not saying that the doctor was right, there’s no way for me to know not being a doctor, but a rectal exam is not a life-changing event. The guy can still go to work. He’s lying on the lawsuit, which should be grounds for dismissal and incur criminal charges against him.

    He can say that it was traumatic and that he doesn’t trust doctors anymore, and sue for emotional distress. The guy is a lying prick out for a quick buck and I have zero sympathy for him.

  45. Optimus says:

    @waydownriver: Say that again after you’ve been anally raped by a guy who was supposed to be helping you.

    There’s this thing called compassion… you might want to check it out. It has a tendency to come back at you when you have it and stay away when you don’t.

  46. cmhbob says:

    It’s rather frightening that so many people are saying he shouldn’t feel traumatized, and that he should just get over it. Would you say the same thing to a woman who was raped? Lots of rape victims suffer similar psych trauma. I don’t see how this is all that different. In fact, I’d say it’s worse. He was somewhere where he trusted the people to listen to him, and they didn’t. They violated his trust, and they violated his body, three times: a forced injection, forced intubation, and forced rectal exam.

    Here’s what happened: he was forcibly subjected to a medical procedure that he refused. They stuck something in his ass after he told them no, and begged them not to do it. He tried to stop them, but they did it anyway, forcing him to submit to 2 additional medical procedures. He was “alerted and oriented times three,” according to one statement. That means he should have been able to refuse treatment. They should have let him walk out of the ER.

    It doesn’t matter that they had a protocol to follow. He was alert and oriented, and he refused the procedure. “No” means no, no matter if it’s sex or medicine.

    I don’t like frivolous lawsuits either, but anyone who participated in that part of his treatment broke the law, and should be punished. I’d like to see the hospital compensate him, and all the staff members fired, and state licenses revoked. They should have known better than to force a procedure like this, and if they didn’t know better, they shouldn’t be licensed in the first place.

    And why the intubation? Did they overdose him in their urgency to sedate him? Is that a reasonable level of care?

  47. brent_w says:

    @johnperkins21:

    Having somthing, anything, stuck in your anus against your will is called rape.

    It doesn’t mater if its a miracle supository to add 200 years to
    your life, If you don’t consent, it shoulden’t be there. Period.

  48. mk says:

    @GitEmSteveDave: Don’t be silly, of course colonoscopy patients are sedated. That’s some painful stuff.

  49. brent_w says:

    @johnperkins21: Sex is no more a life changing event than a rectal exam.
    (asuming no diseases were trasnmited or babies made of course)

    Would you be saying that same thing to a woman who was raped?

  50. misstic says:

    Welcome to Hillarycare!!!

    Who treated him? Dr. House??

  51. bohemian says:

    I can see where being anally raped by a gang of people your supposed to be able to trust and then dragged by the police to jail in nothing but a hospital gown just might give someone some trust issues and anxiety.

    I don’t think his claim that he can’t work had anything to do with a physical injury during the incident but gave the guy a major mental phobia.

    The doc handled this wrong. It sounds like he never bothered to explain why he wanted to do it in order to gain the patients trust and possibly his consent. Sorry but someone tries to play surprise mandatory rectal exam with me I would punch them too.

  52. m4ximusprim3 says:

    I would be much more sympathetic if he just said “I want compensation because someone finger banged my ass when I told them not to”, rather than all this post traumatic “i can’t work” crap.

    Unless you work as a sphincter model, STFU.

  53. mantari says:

    Thanks! You just got me fired from my job at the sphincter modeling agency!

  54. Mr_Human says:

    Construction workers are such pussies

  55. Bay State Darren says:

    They did all backwards: He got an unsolicited rear-entry then he was arrested and incarcerated. Not how it supposed to work.

  56. forgottenpassword says:

    How is it legal for a doctor to FORCE ANY examination on a patient who refuses? Injury or not. Especially something as potentially tramatic as a FORCED rectal exam. THIS is a bit disturbing to me. I have never had one done & hopefully never will. I dont care if my prostate explodes.

    I hope someone forceably holds the doctor down, & shoves a fist up his ass!

  57. Benny Gesserit says:

    Why didn’t he do what Joan Rivers used to say men over 40 do: fantasize he’s a French resistance fighter and yell “I tell you nudding Nazi peeg!”

    At the sound of the rectal tone, the time will be…

  58. padams89 says:

    @svreader: I am currently training to be an EMS provider (EMT to be specific)and the issue of consent is legally defined. Any person who is mentally competent can refuse treatment or withdraw from treatment at any point during treatment and the healthcare provider whether an EMT, Paramedic, Nurse, MD, whatever is LEGALLY REQUIRED to comply. But, the patient must sign a release specifically stating that he/she is refusing treatment despite advice to the contrary from the healthcare provider. A patient is defined as mentally incompetent if: he/she has had ANY amount of alcohol (BAC irrelevent), is under the influence of illicit or prescribed mind altering drugs, is in shock (can be determined by a patients symptoms: cold-clammy skin, low body temperature, pale, low heart rate and respiratory rate, etc.), had head trauma, or is unresponsive or delirious. These situations do not cover all situations in which a patient is not mentally competent but covers the majority of them.

    It is also important to know that although in this case the patient may have been competent (I don’t have enough details to know for sure) healthcare providers are instructed to presume incompetence whenever there is doubt for sake of liability and patient safety purposes.

    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.

    Hope this helped to clear some things up.

  59. brent_w says:

    @bohemian:
    “Sorry but someone tries to play surprise mandatory rectal exam with me I would punch them too.”

    Thats possibly the best/funniest sentence I’ve read all day.
    Hehe, A+.

  60. padams89 says:

    @forgottenpassword: the laws were made to ensure that when a patient is incompetent the care provided is the care the would be accepted by “any reasonable, rational, person”

    in addition think of it this way:
    if you are in a severe car accident and are fading in and out of consciousness, and have potentially life threatening injuries, would you want EMTs and Paramedics to treat you if in your delirium you refuse treatment? many of the previous commenters are suggesting that in such a situation they would NOT want to be cared for.

  61. homerjay says:

    Are you sure this guy’s name isn’t Peter Griffin???
    “I too have felt the cold finger of injustice on my insidey parts”

  62. brent_w says:

    @padams89: Personaly I would file
    “punching someone who is trying to stick their fist up your ass”
    under “SELF DEFENSE”.

  63. padams89 says:

    @brent_w: as far as I know self-defense only applies when you are subject to phsical harm…hardly the description of a rectal exam, which, it should be noted involved one finger, not a fist.

  64. ClayS says:

    @Rectilinear Propagation:

    It was explained that the reason for the rectal exam is to check for the presence of the blood. That would be indicative of internal injuries which can occur after a fall.

    That should have been communicated to the patient, however if he still refused the exam, his wishes should have been respected.

  65. brent_w says:

    @padams89:
    And as far as I know, forcing anything into someones rectum against their will is known as rape.

  66. forgottenpassword says:

    Yeah, I am suprised at people who basically said… “so what that he was held down & anally probed against his will”. I would consider that a very tramatic experience. ANd yes it could very well effect you for the rest of your life. That’s how trama works. You just cant get rid of it or shake it off like it was nothing. And i would think each & every one of you would be hopping mad & wanting to punish those responsible if you had been violated in such a way against your will.

    I’d demand the sun & the moon in a lawsuit after being literally screwed like that!

  67. MercuryPDX says:

    It was an index finger, not a fist or an arm up to the elbow. Unless your doctor is E.T. or the Jolly Green Giant, bigger things have come out of that area.

  68. Greasy Thumb Guzik says:

    @melking1972:
    You must be a wimp!
    My last four colonoscopies were done without sedation.
    It’s not needed, doesn’t hurt much at all!
    The most recent, last September, I got to watch it on a new 46″ TV they had on the wall.

    Foley catheters & NG tubes, however scare the shit out of me!

  69. brent_w says:

    @forgottenpassword:
    I know, and then the fact that afterwards he was arested, taken to the police station, and booked … IN A HOSPITAL GOWN.

    I for one would find that a rather tramatic experience itself, let
    alone the fact that he was also held down and given a rectal
    examination against his will.

  70. doctor_cos wants you to remain calm says:

    Wouldn’t your rectal tone be the same frequency as the ‘brown note’???

  71. padams89 says:

    @mercurypdx: thank-you!

  72. forgottenpassword says:

    @mercurypdx:

    Yeah, “come out” is a bit different than “forceably coming in”. One is natural, another is not.

    Can I hold you down & forceably stick my finger up your ass against your will?

  73. deb35802 says:

    @kittenfoo: I used to work with a large group of FM residents and started hating doctors at that time. There were many weekends when I would hope and pray that I didn’t get sick because certain docs were on ER duty.

  74. Trai_Dep says:

    Well that’s it. The patient? Totally gay. Flaming, flaming, flaming. Tiarra-wearing, Paul Lynde-quoting, park restroom-trolling gay. Err, now.

    (cough)

    Unless the doctor has digits the size of bratwurst*, the patient needs to grow up. He’s too old to believe in gay cooties.

    * If he does, he really needs to advertise this fact in select, local periodicals.

  75. padams89 says:

    @forgottenpassword: The true issue here is consent. He had a head injury and as per EMS Protocols a person with a head injury is considered incompetent until the ER knows that are not further issues that affect the way the patient makes decisions. People have been pointing to using an x-ray or CT but both of them have availability as well as time issues. a CT takes at least 30 minutes in addition to administering any dye, not to mention have a radiologist read the CT. An x-ray requires going to radiology, taking the x-ray, waiting for it to be developed, in addition to waiting for a radiologist to read it. Why should there be all this waiting and additional cost when all a simple rectal exam requires is a glove and a few seconds of a mild uncomfortable feeling that ends with no issues after the procedure.

  76. brent_w says:

    @padams89: Because if the person you have
    blindly judged as incompetent is actually competent, as in this case,
    you have grossly mistreaded and violated their rights.

    This was a violation of the right to refuse treatment.
    A forced entry into the rectum – IE Anal Rape.
    And then followed up by an arrest and a trip, half naked, to jail.

    Its pretty damn easy to see why this could be distrubing.

    As far as I’m concerned they aught to be pretty thankful their
    profession gets them out of a rape charge, and accept the fact that
    they owe this man compensation.

  77. warf0x0r says:

    @melking1972: Conscious Sedation. Most Colonoscopies are done with the patient being conscious enough to watch the procedure. Otherwise they need to have an Anesthesiologist in the room and the fee usually doubles, so a majority of doctors do the procedure without putting the patient under. Although the patient can request it and usually insurance wont cover it for this procedure… unless you have good insurance

    Versed and Fentanyl are powerful drugs.

  78. bones says:

    I love the “medical opinions” expressed above. A “complete” exam is the standard of care for head trauma patients, and many docs and hospitals have been sued for failure to do a complete assessment. But more importantly, many patients injuries have been overlooked and the patient has been harmed by the failure to do a complete exam. Docs do exams like this because it diagnoses injuries and prevents missing problems that might crop up after the patient is released. In an ER you don’t put off necessary exams for a “psych consult”, patients slip into comas or die while waiting for “psych consults”, and then you should see the change that comes over the patient – he actually “begged” the ER staff to do the tests and they deliberately and inhumanely refused to do the test and laughed at his pain and suffering……..The lawsuit tells you more about this guy and his schister than the rectal exam does.

  79. Elviswasntmyhero says:

    Comedian Jeff Dunham: You think you got abducted by aliens?

    Bubba J: I don’t think. I know. They took me and they stuck something in my butt…and not in the good way.

    [www.youtube.com]

  80. MercuryPDX says:

    @forgottenpassword: Does that include dinner first? ;)

    Kidding aside, after reading the description at: [www.disaboom.com] , it looks like important part of the exam to determine spinal cord damage (no matter how unpleasant it is), and involves “a gloved finger”… singular… one, which probably doesn’t even have to be inserted past the second knuckle.

  81. Nemesis_Enforcer says:

    When I worked at Best Buy while in college I had to have a anal exam as well. I was helping another worker get a 52″ big screen down from the back storage rack. I was on the ground and he was on a lift. As he was lowering the lift to the ground the tv became unbalanced and knocked me over. It landed corner first on my chest. I thought everything was ok until I stood up and passed out. I went to the ER and they told me they needed to do the exam to check for blood. It took maybe 3 seconds. Yeah I can see this guy freaking out because they forced him. A lot of people who aren’t secure in thier masculinity/sexuality freak about anything anal related.

  82. LilKoko says:

    Here’s what I don’t understand. . . if the med staff wants to claim the patient was mentally incompetent at the time, then how can they have him arrested for assault?

  83. MercuryPDX says:

    @trai_dep: Does the Village Voice still do personals?

  84. lemur says:

    @padams89: Thank you for the level-headed comment on the legalities of consent.

  85. forgottenpassword says:

    Just want to point out also…. that from the ER experiences I have had (both myself & family members being admitted)…. the nurses/doctors tend to treat you like you are bothering them & are a pain in their ass. I soiled myself once while violently vomiting after being admitted to the ER & when I told the nurse… she had this “you pain in the ass!” look on her face…. handed me a paper bag & a gown & pointed me in the direction of the restroom in an annoyed manner.

    They dont exactly seem to exude compassion. Maybe its from having to deal with shit all day. In fact… I recieved a followup questionaire in the mail & it was mostly about asking how well you were treated by ER staff. Basically asking how compassionate they were. From THAT I got the impression that it was a common problem with ERs.

    Lets not forget the treatment that one lady recieved at the ER when she was lying on the floor, vomiting up blood & eventually died when they basically ignored her pleas for help. [www.msnbc.msn.com]

  86. SVreader says:

    @Rectilinear Propagation: Oh, they had a parade of people attempting to. I was really dehydrated.

  87. padams89 says:

    @LilKoko: assault is assault irrelevant of competency…if a patient is incompetent at the time of the assault that, as ridiculous as it seems, is for the police and/or court of law to determine.

  88. padams89 says:

    @bones: thank you…this is the point that so many people don’t understand

  89. padams89 says:

    @brent_w: the judgement of incompetence was by no means blind, it was in accordance with the law and standards of care..if you are bothered by the ER staff’s declaration of incompetence then you need to contact you representative about changing the law.

    it is very clear that in this situation, there is absolutely no reason for an accusation of anal-rape…the doctors and ER staff owe this patient nothing…the patient should be thankful that the staff ensured that he had no internal injuries.

  90. Trauma_Hound says:

    @johnperkins21: The fuck he should, the doctor should be arrested. The police should lose their jobs for unlawful detainment. This was tantamount to rape.

  91. strathmeyer says:

    @kittenfoo: “hope the doctor is anally raped with a chainsaw right there in the courtroom. sorry. i don’t care much for the “medical deity” establishment.”

    Really? I hope the patient dies of a spinal injury.

  92. Pope John Peeps II says:

    @Rectilinear Propagation: When you’re dehydrated, or have low blood pressure (i.e. old folks) your veins are the first thing that collapse, making it extremely difficult to find, no matter how expert the nurse is.

    @samurailynn: It’s only a “useless” procedure because the doctors didn’t find anything. If they had, and it had saved this man’s life or ability to walk, or whatever, then he’d be shaking their poo-smelling hands right now.

    As it stands, if the doctor acted in good faith, as it seems he did then this fat brooklynite is just a fucking whiner who punched a guy for trying to see if he was injured. Fuck him.

  93. SacraBos says:

    @kittenfoo:
    Q: What do they call the guy that graduates at the bottom of the class in Medical School?
    A: Doctor.

    @svreader: I always recommend having an Advocate go to the hospital with you. Make sure you are taken care of, nurses periodically stop by, don’t get missed during shift changes etc. My wife had to alert the nurses station that she had been moved to her room after surgery. They didn’t know she was there, and was in danger of missing medication had my wife not been there assure her care. Mistakes happen, sometimes you need some extra help on your side.

    @padams89: Sorry, saying you can “forcibly resist” but not “batter” someone who’s trying to shove their finger up your tuckus is absurd. He forcibly resisted, and they attempted to overcome him. He forcibly resisted harder. The doctor kept escalating force on a patient which very obviously was “forcibly resisting”. Continuing to escalate the situation insured that someone was going to get hurt. Sorry, but I think the Doc screwed up, and got clocked for his mistake.

  94. Trauma_Hound says:

    @padams89: You don’t think anal rape is physical harm? So are you volunteering to be held down and someone stick a finger up your ass?

  95. MrEvil says:

    @LilKoko: Indeed, if the patient was delerious from the head injury, how is he responsible for his actions? If the hospital is claiming he was mentally incompetent to refuse the procedure, then even a public defender will get the charges dismissed on grounds of temporary insanity.

    The hospital’s up shit-creek. If they claim he wasn’t competent enough to make rational medical descisions, he gets off. If he was competent enough to refuse treatment then he gets off the hook and now the staff at the hospital are subject to AT LEAST malpractice. Their best bet in this instance is to drop the criminal charges, and give the guy a few grand to get him to shut-up.

  96. Will Clarke says:

    @Trauma_Hound: Juries with oversensitive idiots like you are paying out exorbitant malpractice settlements and making our healthcare costs go through the roof. There are other contributing factors as well, but this is definitely one of them.

    He was given a rectal exam for his own good. The fact that the patient is a homophobic oaf is his own problem, not the doctor’s.

  97. cheviot says:

    So…. If he’s incompetent to refuse treatment how could he be competent enough to be responsible for his own actions in striking the doctor, eh?

  98. Aladdyn says:

    @LilKoko: same way when a girl gets drunk and has sex she can say she was raped and when a guy gets drunk and has sex its his fault if the girl says anything was wrong with it.

  99. drjayphd says:

    Would this post have hit triple digits if not for the rectal exam bit? ;)

  100. Will Clarke says:

    @Trauma_Hound: Unless I missed the part where the doctor performed the rectal exam with his penis, it’s pretty clear this was not rape. Stop being an alarmist.

  101. Alger says:

    On the one hand, it’s no big deal and he was a bit childish for refusing.

    On the other hand, once he said no, it became assault. They should arrest the doctor for this; it shouldn’t just be a matter for civil court.

  102. kbarrett says:

    @Pope John Peeps II

    I could care less about good faith or danger to the patient. Forcing any kind of treatment on someone is still assault. No consent? Then park him outside the ER.

    Forcing treatment on him was unconscionable.

    The “mental stress” language was just legalistic crap … the proper result should have been a criminal conviction for the ER personnel.

    No means no, dammit.

  103. padams89 says:

    @Trauma_Hound: having a rectal exam and being anally raped are not even close to being the same thing. the comparison you are making is the same as saying that having sex and having a vaginal exam are the same thing because in both cases something is stuck in a woman’s vagina, which they clearly are not.

    and yes, if I was in his situation I would be glad that i had the rectal exam because its purpose is to ensure that I do not have further injuries

  104. padams89 says:

    @Will Clarke: im glad someone else is being reasonable

  105. padams89 says:

    @Alger: the patient was not competent as defined by the law so the doctor was correct in doing the exam and followed rather than violated the law.

  106. kbarrett says:

    @padams89

    Not your decision to make. “If I was in his situation” opinions are irrelevant.

    No consent? Then knock it off.

  107. kbarrett says:

    Did the doctor get a psychiatrist evaluation, and have him declared legally incompetent?

    I doubt that.

  108. padams89 says:

    @kbarrett: you clearly don’t understand the law and how consent works under the law, he was under what is called implied-consent because of his head injury.

    and yes the “if i was in his situation” opinion is relevent, try reading the post I was responding to

    @kbarrett: a psychiatrist consult is unnecessary since he was in the ER with a head injury, if he was not in the ER and did not need immediate care, then yes a psyc consult would be necessary. again know the law before you try to cite it

  109. DallasDMD says:

    @Will Clarke: So you wont mind if I poke you in the rear with my fingers?

    The guy said “no”. The doctor is in the wrong. Don’t play the homophobic card.

  110. techguy1138 says:

    @LilKoko: good point. It seems like if he wasn’t able to make decisions he never should have had charges filed.

  111. Chris Walters says:

    @Nemesis_Enforcer:

    When I worked at Best Buy while in college I had to have a anal exam as well.

    Somehow, that line seems like something you’d only read on The Consumerist.

  112. MercuryPDX says:

    @cwalters: I could swear I heard it start “Dear Penthouse” until sentence 3.

  113. RagingTowers says:

    You would think that in this high tech futuristic world we live in there would be some machine that can tell if you have a spinal injury…

    But no…Finger in the ass it is!

  114. oghelpme says:

    What if his head was up his… oh nevermind.

  115. aaydemi says:

    @padams89: From a (future) doctor’s point of view…one thing that is ALWAYS ALWAYS ALWAYS in common in any medical case presented here on Consumerist: LAWYERS.

    I’m not necessarily siding with the doctor, cause really, I don’t know what’s wrong with that guy. Who wants to stick a finger up someone’s ass? Certainly not me. However, the devil’s advocate says…

    This guy fell on a construction job. A spinal cord injury is something that can’t be overlooked in any fall case.

    Say this guy refused treatment and the doctor obliged. Next thing you know, he decides to go back to work, lifts something heavy, permanently injures his spinal cord, and is paralyzed. EVEN IF HE SIGNS OUT AMA, any conniving bloke could easily go to some liar, I mean, lawyer and say, “I wasn’t in my right state of mind when I signed this, therefore it should be inapplicable. The doctor should have known and checked. He was being negligent. It even says here: “A patient is defined as mentally incompetent if: …any head trauma…”(from above). I want to sue him for 5 billion dollars.” Same end result: lawsuit. If you were that doctor, would you risk losing everything?

    The thing I find funniest about this story, though, is how he won’t trust the doctor’s diagnostic judgment, but all of a sudden, when Mr. LAWYER makes the diagnosis of “post-traumatic stress syndrome” in order to proceed with the case…well of course, that’s exactly what he has. Law school seems like a pretty good bang for the buck.

    Just something to think about before condemning all of medicine.

  116. socritic says:

    aside from being a homophobe, why would this man object to a rectal exam? after all, he was being checked for further impact of the injury. Everyone gets a finger put up their rectum once or twice in life. get used to it.

  117. padams89 says:

    @aaydemi: I too consider myself to be a future doctor (i’m a college frosh), have worked in medicine in varying position for the past three years, and am currently training to be an EMT.

    I am definitely not trying to condemn all of medicine and as a result, I think I may not have been clear in the post of mine that you were responding to. I AM siding with the doctor in this case. In that post I was referring to someone else’s post suggesting a CT or X-Ray should have been done instead of the rectal exam and I was explaining how a X-Ray or CT is unnecessary for that type thing and would result in wasted time, money, and resources.

    Also, as a side note, I believe the post you referenced concerning the mental competency of a patient is mine as well. I mention this just to show that I have posted quite a few times taking the side of the medical community, specifically this doctor.

  118. ninjatales says:

    Hope he gets to stick a loaded shotgun up the doc’s ass in front of a large crowd and call it even.

  119. rubberkeyhole says:

    @Adam Rock: You totally beat me to it!! It’s only a matter of time before he’s peeing all the time…

  120. cmdr.sass says:

    Well, clearly he was asking for it.

  121. cmdr.sass says:

    Also, look for this to go to a quick and quiet settlement with no charges filed on either end, so to speak.

  122. burgundyyears says:

    @bones: Hah! Someone’s worked one too many medical liability cases. Right on, man.

  123. burgundyyears says:

    Had the doctor failed to do this check and this guy turned up quadriplegic the next day, he would be in big time end-of-your-career negligence territory.

    This queen that doth protest too much should receive nothing.

  124. dgcaste says:

    This doctor was trying to save the man’s life. If the lawyers have their way it’ll be the biggest mistake of his life.

  125. timmus says:

    The average claims payout by medical malpractice insurance companies is about $30,000 per year. In most cases, juries award nothing at all to medical malpractice patients. According to a study by the Consumer Federation of America, medical malpractice costs, as a percentage of health care costs, are 0.55%.

    Let’s just clear the room of that malpractice BS.

  126. cuiusquemodi says:

    @Will Clarke: So… he’s a “homophobic oaf” for objecting to something and then (over)reacting when it’s forced on him? This is not to say I know or am qualified to comment on the situtation, but I have to wonder, would you consider a female rape victim who fought back heterophobic?

  127. the_wiggle says:

    @samurailynn no kidding. if this’d been done to a woman, no one would be hassling her. no is no is no. find another way.

  128. Tracy Ham and Eggs says:

    @timmus: well, Ild prefer a report from a group that is a little less biased, but lets consider.

    MedMal claims have increased. Now, the cost of lost lawsuits may only be that dubious .55% that you claim, but insurance companies keep raising medmal insurance rates thanks to the administrative cost, and a larger required reserve. There is no question that those cost have risen 52%, which is pretty damn significant.

    Add to that the time this take doctors out of the office, even for frivolous claims, and the lack of new doctors in many specialties (which has been proven to be directly related to medmal cost) and the value of a doctors time goes up, raising cost.

  129. aaydemi says:

    @padams89: Sorry, replied to the wrong post. I meant to reply to Brent W’s post shortly after yours.

  130. D.B. Cooper-Nichol says:

    @Optimus: There’s also a thing called hyperbole. People shouting “rape” a hundred times doesn’t make it so.

    The patient, and perhaps several who are shrieking that this was “anal rape” (they’re all the same in the law books), are revealing their own hang-ups. It’s a medical exam, not a sexual assault.

    To Cheviot and MrEvil: Read the summary, if not the original article: The criminal charges were dropped (and the hospital isn’t suing anyone).

  131. XTC46 says:

    The doctor could have done other tests rather then the one that was against the patients wishes. The conditions he is complaining of could be true if the person was a sever homophobic. As much as we think it is stupid, he could feel very traumatized by the experience depending on how he viewed the action. Similar to how a gay man hitting on a non-homophobic male may cause little reaction if any, and hitting on a severely homophobic male may cause the gay male to be punched. It doesnt matter how you feel about having the procedure done, it matters how they feel which will determine the basis of his mental health after it.

  132. MercuryPDX says:

    @cuiusquemodi: Replace the finger/anus part of the situation.

    What if full and successful diagnosis required…

    … a needle in the arm to withdraw three vials of blood and the patient was afraid of needles and the sight of blood?

    …a throat culture and the patient was afraid of a Q-tip going in his mouth or touching his tonsils?

    …an MRI and the patient was claustrophobic?

    Would you fault the doctor for saying “You’re obviously afraid, so just get dressed and leave.”?

    Who would you hold responsible if the patient died as a result of the incomplete diagnosis?

    Do you think that doctor woke up that morning and said “Gee, I hope I do a rectal exam today.” or “Gee, I hope I don’t miss anything that could compromise a patient.”

  133. ShadowFalls says:

    I think the point made here is that he refused the procedure, they then proceeded to force it on you. You could have a nail lodged in your skull and refuse treatment, it is your choice.

    The him not being mentally sound part will not hold up in court, since for them to even consider it, he would have to have been evaluated by a psychiatrist before they forced the procedure on him.

    If someone was trying to force a procedure I didn’t want on me, you bet I will start swinging.

  134. padams89 says:

    @ShadowFalls: The mentally sound part WILL hold up in court because it was in an ER and he had a head injury. It is that simple. Ask anyone who works in Emergency Medicine (EMT, Paramedic, ER Nurse, ER MD) and they will confirm this for you. A psyc consult is only required for non-urgent situations when there is no circumstance (such as head injury, but there is a list of other applicable circumstances) that legally deems the patient incompetent.

  135. cmhbob says:

    OK, let’s try this.

    The patient arrives exhibiting signs of severe blood loss, severe enough that they need additional blood, and now. But they’re conscious, and they inform you that they are a Jehovah’s Witness, and they refuse any blood products of any kind.

    Are you going to forcibly sedate them, and force them to receive a life-saving treatment they specifically refused?

    If not, then why not? And if not, then what’s the difference? Why they refused doesn’t matter. They refused the treatment.

  136. Will Clarke says:

    @DallasDMD: If you’re a doctor and I was just injured, of course I wouldn’t mind. You would be an idiot to refuse.

  137. MercuryPDX says:

    @cmhbob: Touche :)

  138. stopNgoBeau says:

    When the doctor filed a assault or battery charge, he pretty much blew his “I didn’t know if he was lucid” defense out the window. If a patient comes in and isn’t lucid, and becomes combative, they dont have him arrested, they just tie him down.

  139. Will Clarke says:

    @cuiusquemodi: Yes, he is a homophobic oaf for refusing the treatment. I could understand that reaction from an awkward, confused 12 year old, not a grown man.

    And to compare a doctor being thorough and a man forcibly raping a woman is insane. The doctor wasn’t giving him a rectal exam maliciously, he was doing it to diagnose a potentially life threatening injury.

  140. aaydemi says:

    @cmhbob: Answer to your question: You offer them Lactated Ringer’s.

    I think what people are not realizing is that this is all happening in real time. ER doctors have to make assessments, judgements and decisions very quickly. When you’re in the ER you don’t have time to wait for psych to mosey on down from the 17th floor. Every second counts.

    In your scenario, if she’s got a gash on her leg that’s spilling blood, I would say her mental status and competency are intact. It’s a cut on her leg. Therefore, if she refused treatment, I would oblige without objection. The guy in this story got HIT IN THE HEAD AND NEEDED 8 STITCHES. Have you ever seen a football player after he’s had a concussion? Let alone someone needing 8 stitches? I wouldn’t even let him pick my socks.

    The question here goes beyond forced administration of a treatment after a patient’s refusal. 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. As can be seen from the small sampling of people we have here, I’d say about 99.999% of people would not mind having a finger up their butt for 2.5 seconds, to ensure there is no further SERIOUS injury. At the same time, I think 99.999% of people would be seriously upset (enough to sue) if the doctor didn’t check (because I told him not to when I was in my delirious state) and there ended up being a serious spinal injury that jeopardized that person’s ability to walk.

  141. cmhbob says:

    @aaydemi: Good answer; I hadn’t thought about that. But is that going to do everything they need at that point?

    And I’m curious about something, since we have some semi-knowledgeable medical types here: He was evaluated at one point as “alert and oriented times three“; how does that affect anything about his competency to refuse treatment?

    And no matter what, the assault charge should have gone away. If he wasn’t competent to refuse treatment, then he couldn’t be held competent for an assault he allegedly performed at the same time. If he was competent to refuse treatment, then he had every right to refuse as violently as he could.

  142. redkamel says:

    well a rectal exam is a quick way to check for internal bleeding or damage to the spinal cord. If his cord/part of his brain was damaged, he would lose rectal tone…and possibly more within the next hour or two as a the injury swells. Theres not much time to ASSess (sorry) that kind of stuff, so Doc was justified in wanting to perform a rectal, and wanting it bad. Especially since he’d probably get sued in a second for not doing it.CTs dont always pick up small stuff…or its not readily apparent on the film.

    Obviously the issue now is consent, but bottom line, the ED leaves no stone unturned before they send people out. What if this guy left, couldn’t walk two days later, and it was found out he had had no rectal tone the whole time? Even if he’d refused the procedure people would still blame the doc for not trying to do a rectal. It sounds like everyone here would rather have the patient tell the doctor what to do during an emergency. This wasnt a checkup, this was a justified exam.

    I would have called in another doc to help deal with this..and determine whether or not to try and force one . Who knows when a psych eval will get done, and its really for his own good. Its not like he was given drugs or anything, he was give a physical exam. Its not “anal rape”…is a gyn exam “sex”?

    If he was talking, walking, and with a clear head exam and passed all his neuro tests, I would have him sign a release. If it was a real emergency (as in he came in on a gurney, covered in blood, etc) he’s getting a rectal no matter what he says.

    and in regards to the “competency” theres a difference between being competent enough to understand a medical procedure and competent enough to hit someone. Its probably the same reason you go to jail for manslaughter while you were “incompetent” and drunkenly driving a car.

    any real docs in the house with an opinion? I’m just a student.

  143. brent_w says:

    The people claiming that this is nothing and not similar to rape are missing the mark by miles.

    What separates a rectal or vaginal exam from rape is not its medical intentions, it is consent.

    Would you be insulting a woman who was the subject of a *forced* vaginal exam?

    No, you would be calling rape too.

  144. redkamel says:

    “alert and oriented times three” is a quick way to assess and monitor mental function in the field. It doesnt have to with competency, more with whether he had a big head injury or a decreased level of conciousness. It doesnt assess higher function. For example, I am usually Ox3 (name, location, time) when I am very drunk. However, I cannot make good decisions at that time (whether or not to call my ex).

  145. crypticgeek says:

    @CMHBOB

    Well, once they pass out from blood loss I would do the responsible thing and transfuse. If they woke up and claimed they didn’t consent, I would tell them they never said such a thing they must have been delirious from all that blood loss. Oh look, it’s their word against mine and I saved their life…who’s the judge gonna side with?

  146. brent_w says:

    You’re absolutely right.

    Sensationalist media coverage and its effect on common opinion has allowed the insurance companies to price gouge while pointing to an imaginary problem.

    And at the same time they get to convince everyone that the victimized patients are at fault for high rates.

    At the end of the day, we have people accusing every victimized patient of frivolous law suits while the real criminals, the insurance companies, pad their pockets with all the money and walk away scot free.

  147. redkamel says:

    @brent: yeah, if needed one to possibly save her life or basic functions. ER stuff has a narrower line than in the office just because of the nature of the department. You see the patient once. They may leave and never go to a doctor again. They must leave healthy, or sign a form. And if this guy had a head injury, he can’t sign a form.

    this is my last post and I’m out, but a lot of people are missing the big picture here. On one had: a justified rectal exam, but forced. On the other hand, which most people, such as the construction worker and many posters here dont think about, is peeing and pooping in a bag attached to your hip 24 hrs a day the rest of your life. Or wearing a diaper to work. Or being a paraplegic for the rest of your life, and in addition, having to fit your house and car to be accessible while losing your construction job.

    yeah the situation could have been handled better, but the guy got what he needed while legally incompetent. can’t really argue with that.

  148. brent_w says:

    @crypticgeek: Championing dishonesty and fraud? (lying in court even!?)
    You are despicable.

    At the end of the day not only have you grossly violated someones religious beliefs but you’ve also stuck them with an inflated hospital bill.

    And you pat yourself on the back calling it the “responsible thing”.

  149. b-real says:

    @crypticgeek:

    If someone saw and heard you, you would lose your medical license.

  150. trollkiller says:

    @Greasy Thumb Guzik: You bastard had to bring up an NG tube. I would gladly take 100 rectal exams than 1 NG.

  151. trollkiller says:

    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.

  152. SwampAssJ says:

    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.

  153. stanfrombrooklyn says:

    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.

  154. IrisMR says:

    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.

  155. IrisMR says:

    @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.

  156. Electroqueen says:

    Man, that’s nasty.
    But [www.youtube.com]

  157. 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.

  158. dgcaste says:

    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.

  159. @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.

  160. @Mercurypdx: In any of those situations, if the patient refuses consent, the doctor cannot proceed. It’s really very simple.

  161. @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.

  162. @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.

  163. @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.

  164. aka Cat says:

    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.)

  165. Will Clarke says:

    @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.

  166. Daniel-Bham says:

    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.

  167. cmhbob says:

    @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.

  168. burgundyyears says:

    @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.

  169. rjflyn says:

    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.

  170. @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.

  171. gStein_*|bringing starpipe back|* says:

    @misstic: i thought the exact same thing :)

  172. Nemesis_Enforcer says:

    @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… :)

  173. trollkiller says:

    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”.

  174. vladthepaler says:

    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?

  175. beavis512 says:

    I feel that this man was definitely mentally incompetent because any mentally competent person would enjoy the sweet subtle pleasure of a rectal exam!!!!

  176. D.B. Cooper-Nichol says:

    @Eyebrows McGee: Any citations or state-law qualifiers to all this knowledge?

  177. IrisMR says:

    @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.

  178. lostingenerica says:

    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.

  179. Wasabe says:

    Doctor Forces Rectal Exam, Patient Punches Doctor, Police Arrest Patient, Patient Sues

    The Aristocrats!

  180. DieterX says:

    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.

  181. DieterX says:

    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.

  182. padams89 says:

    @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.

  183. thalia says:

    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!

  184. ShadowFalls says:

    @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.

  185. kls says:

    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.

  186. jjason82 says:

    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.

  187. mykle says:

    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.

  188. Squeegoth says:

    @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.

  189. @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.

  190. MikeH30 says:

    we force circumcisions on infants and that’s permanent but no one cares, the medical community is so corrupt