From NY Times
January 16, 2008, 2:00 pm
Forced Rectal Exam Stirs Ethics Questions
By SEWELL CHAN
Under what circumstances can a patient in an emergency room be forced to submit to a procedure that doctors deem to be medically necessary? That question and the notion of informed consent is at the heart of a civil case that is about to go to trial in March in State Supreme Court in Manhattan.
Brian Persaud, a 38-year-old construction worker who lives in Brooklyn, asserts that he was forced to undergo a rectal examination after sustaining a head injury in an on-the-job accident at a Midtown construction site on May 20, 2003. Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.
According to a lawsuit he later filed, Mr. Persaud was then told that he needed an immediate rectal examination to determine whether he had a spinal-cord injury.He adamantly objected to the procedure, he said, but was held down as he begged, Please dont 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.[/COLOR]
After Mr. Persaud regained consciousness, he was arrested, then taken still in his hospital gown to be booked on a misdemeanor assault charge. Gerard M. Marrone, who was Mr. Persauds 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 hasnt been able to work. He has absolutely no trust in the system at all: doctors or the police. He has post-traumatic stress syndrome. Mr. Persaud has been under the care of a psychiatrist who made the diagnosis, Mr. Marrone said.
After several years of legal wrangling, discovery and dueling motions, a State Supreme Court justice, Alice Schlesinger, this week refused to grant the hospitals petition to dismiss the lawsuit.
The hospital is contesting the lawsuit. While it would be inappropriate for us to comment on the specifics of the case, we believe it is completely without merit and intend to vigorously contest it, said a hospital spokesman, Bryan Dotson.
In an interview today, Nancy Berlinger, deputy director at the Hastings Center, a bioethics research institute based in Garrison, N.Y., emphasized that she was not familiar with the specifics of the case but said it appeared to raise important questions about the doctrine of informed consent.
In general, patients may decline medical treatment if they are informed of the consequences of doing so and capable of making such a decision.
There are special considerations in emergency medicine because of the need to make rapid assessments, Ms. Berlinger said. You could have an evident life-threatening injury someone bleeding out of a carotid artery or the potential for a life-threatening injury that you cant see, such as a stroke or spinal-cord injury. It is not always clear what is the patients capacity to make decisions, especially if the doctor suspects a head injury.
A jury or judge evaluating the case, Ms. Berlinger said, might have to answer these questions about the procedure: Was it medically necessary? Was the patient capable of understanding what was going on and making a decision about it and understanding the consequences of refusal?
To successfully demonstrate that the hospital was negligent, Ms. Berlinger said, the plaintiff would have to show that the treatment involved a departure from the standard of care, that the patient was harmed and that the harm resulted from the departure from the standard.
Lawyers for both sides the hospital and Mr. Persaud have lined up doctors to testify. In an Aug. 9, 2007, seven-page medical evaluation, Dr. Irving Friedman, a neurologist and psychiatrist hired by Mr. Persauds lawyers, wrote:
Although a rectal exam is part of the routine E.R. evaluation, this patient clearly refused. His life was not in danger. He did not have any signs of abdominal trauma. He had full range of motion and movement of all four extremities. A reasonable analysis of his situation could have been obtained without checking for rectal tone.
Dr. Friedman concluded that Mr. Persaud has been left with extreme anxiety, agitation and depression due to the events at the emergency room.
But there are complicating factors. Mr. Persaud was evidently driven to the hospital; doctors might have suspected he had injuries despite his ability to walk. He did not have family members present who could have helped him to articulate his medical preferences. Finally, the head injury requiring stitches might have led doctors to question Mr. Persauds capacity for making an informed decision.
Now the case goes to court. The judge set a trial date of March 31.
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so you get paralyzed and sedated prior to the rectal (b/c you're combative with a head lac and hit a staff member)....and then you're going to claim PTSD based on the rectal (which you really should not feel or remember) if you were paralyzed and sedated....
i think this is a case of someone hoping for a settlement just for the hell of it....
can you imaging how many people could then file suit... all those young guys in the trauma room who scream they don't want a rectal... but get one as part of ATLS?
