Forcing Care on Patients

Yesterday there was a Associated Press news item about a lawsuit involving an Emergency Physician and a forced rectal exam:

Man: NY Hospital Forced Rectal Exam

The Associated PressNEW YORK (AP) — A construction worker claimed in a lawsuit that when he went to a hospital after being hit on the forehead by a falling wooden beam, emergency room staffers forcibly gave him a rectal examination.

Brian Persaud, 38, says in court papers that after he denied a request by NewYork-Presbyterian Hospital emergency room employees to examine his rectum, he was “assaulted, battered and falsely imprisoned.”

His lawyer, Gerrard M. Marrone, said he and Persaud later learned the exam was one way of determining whether he had suffered spinal damage in the accident.

Marrone said his client got eight stitches for a cut over his eyebrow.

Then, Marrone said, emergency room staffers insisted on examining his rectum and held him down while he begged, “Please don’t do that.” He said Persaud hit a doctor while flailing around and staffers gave him an injection, which knocked him out, and performed the rectal exam.

Persaud woke up handcuffed to a bed and with an oxygen tube down his throat, the lawyer said, and spent three days in a detention center….

Hospital spokesman Bryan Dotson said, “While it would be inappropriate for us to comment on specifics of the case, we believe it is completely without merit and intend to contest it vigorously.”

Today it was linked to on the WSJ Law Blog, linking to Slate’s ‘Explainer’ column, the best part of which is this:

Slate MagazineThe idea of consent as a patient’s right goes back at least to 1914, when Benjamin Cardozo (who would later become a Supreme Court justice) ruled in a New York case that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.”

I have absolutely no problem with that answer, and it also lays out the situation in which I am ethically and professionally compelled to act against the wishes of my patients, the patient not of sound mind who refuses potentially lifesaving examination and treatment. 

Here’s my typical ‘against their will’ patient (who’s not there for a psych diagnosis, different story): Adult male brought in from a motor vehicle accident with some moderate damage to the car, usually tachycardic and normotensive, with signs of trauma externally (small lacerations or contusions) but nothing that makes anyone in the room immediately concerned.

Then comes the mental status examination, and the problems start.  The patient is ‘altered’, which can be described a lot of ways but for me  boils down to ‘not right right now’.  Yes, it could just be alcohol or drug intoxication (most people will, initially, cooperate and tell you what they’ve taken, but not all) but even if they cop to the drugs and booze, it that really all that’s going on?  Does this patient have a head injury causing their slurred speech, their restless combativeness and their unwillingness to cooperate, or not?

There are a couple of ways to find out, and at this point in this patients’ care they’re both fraught with problems: wait and see (and hope for the best), or examine and treat to exclude life and limb threats against their verbalized wishes (to guard against the worst).  This is where “First, Do No Harm” becomes a work in progress, balancing the risks of sedation (or infrequently sedation, paralysis and intubation, which are real but small) to facilitate a medical evaluation to exclude badness versus the also small but real risk the patient has a severe injury being masked by alcohol or drugs, which waiting to diagnose could spell disaster.

I’ll tell you that I’ve done both, and that’s where the professional judgement comes in, deciding based on training and experience who to watch and who to press ahead with.  It’s not an easy decision, and it’s much much harder to go against any patient’s verbal desires, but if I’m concerned enough I do it.  Frankly I’d much rather work up 100 patients with an altered mental status against their will than miss the patient with a life threat that I ascribed their altered sensorium to alcohol or drugs, and it was just a confounding problem.

Here’s the patient who personifies the issue (a mixture of real patient experiences to obscure it, but all this has happened with my personal patients): adult male, 275# (all muscle) brought in cuffed after a car chase with the PD.  Wrecks car, has a 4 inch lac across the forehead, and is diaphoretic with a HR at 130.  Patient is alert, answers most questions, denies drugs (the PD says he’s a frequent cocaine user, they’ve arrested him before), moves all extremities, but won’t allow any interventions.  Nice nurses try their best to bond (I only really bond well with older vets and LOL’s) and he’ll allow his BP, but that’s it; no IV’s, nothing.  Speech is direct but goal-directed (toward leaving), and none of us can talk him into letting us do anything.

My problem as the treating EM doc: do I let him walk out?  His lac will eventually heal, but I’m very very worried about head injury and the real possibility of internal bleeding from his accident.  If he has any of those, it’s terrible for him if I let him go (and not good for me either, I’d get to try that career change I talk about).  Yes, all this weird behavior and the abnormal vitals can be explained by cocaine use, but am I willing to risk his life on that assumption?

No.  We tried five adults holding an arm while giving 5mg of Vitamin H (Haldol) with 10mg of Versed, and he was still wide awake an struggling, no way we’d get a CT done.  This was only the second time in my career I’d used IM sux to knock a combative patient down (quadruple your IV dose), and it worked; his intubation and workup proceeded very smoothly.  He benefited from not struggling with other adults, decreased BP and heart rate, and we sewed up his lac while he was out.

I’d like to tell you we found a big bleed and saved his life, but this is reality.  His CT’s were normal, Trauma washed their hands of him as a cocaine ingestion, so when he woke up in the ER 4 hours later (we were sedating him while intubated) he was calm and cooperative.  He apologized to all of us profusely, told us he’d been taking cocaine heavily ‘and I get out of control sometimes’.  He went home, safe.  I slept well, because though it was a risk to go against his wishes, it was a much better choice than letting him go, for both of us.

I’m not well-versed enough in the jargon of ethicists to use their terms, but doing right for patients very occasionally means not doing what they tell you they want. 

It’s rare, and it happens.

Hat tip to reader Chris, and many thanks to my commenters.  I’m not gone, it’s just a slump.

Comments

  1. I think the large problem with this case is that people are focusing on the outcome rather than the presentation. The outcome was some stitches. The presentation is male hit on head by falling beam. In my book thats head injury +/- c-spine injury until proven otherwise. At the trauma hospital I rotate through, I’ve never seen a trauma patient not get a rectal. I can easily see a situation where this gentleman becomes combative and is viewed as a danger to himself and the staff around him, leading the ER to do exactly what they did. And all this does is make the public more suspicious of doctors. My local radio station was talking about it framed as a rectal exam for a guy with a cut on his head, of course it sounds ridiculous when you present it that way. What frustrates me most about this is that the lawsuit already made it past one judge and is actually going to a trial.

  2. Goatwhacker says:

    I was trained on “a finger or a tube in every orifice” as well but as usual with these stories we need more info. A simple brow laceration shouldn’t require a rectal but I suspect there was more going on here.

  3. I thought there were new research articles out there that were finding that the rectal wasn’t quite as effective as previously believed.

  4. Old habits die hard and so do attitudes of control. The rectal as a screening tool for spinal injuries is one of them. The latest of several articles showing the that rectal as a screening tool was published in the July annuals of emergency medicine. The attitude that needs to die is that any patient who meets the local trauma criteria and gets seen by the trauma service cant refuse anything during the inital eval including forced rectals and foleys. I just wrote a piece at my blog on this very subject.

  5. The problem with not performing tests that “used to be” the gold standard is that if a bad outcome occurs, everyone asks you why you didn’t do the test. Miss a subtle spinal cord injury that later develops into paraplegia? Didn’t do a rectal exam? Heck, if you did the rectal exam you surely would have seen there was no tone there. Retrospective analysis by old school experts will getcha every time.
    Fear the bad outcome.

  6. Outstanding example of the diagnostic dilemma for us. The suit focused upon the issue of unwanted rectal exam more than the critical issues of paralysis, sedation, CT, intubation, etc. Argree with ERMurse that 2006 and 2007 provided many studies concluding that rectal exam is not sensitive in the setting of blunt trauma and should be relegated to “rarely useful” status. With confirmed spinal cord injury it may be useful to follow bulbocavernosis reflex.

    I suspect what happened was an attending barked out CYA orders to a resident who felt powerless to use a modicum of judgment . Tempers flaired, and it spiraled out of control. Charging the patient with battery was the final insult.

    I can add that very intentional, focussed behavior does not R/O serious brain injury. One of my own suits involved a patient with seemingly minor head injury, stable vitals, improving sensorium, and a well-placed kick to the security guard’s head. Police were called and I discharged the patient. Later, I wished that I had not.

  7. “…cuffed after a car chase with the PD. Wrecks car…” so a criminal(?) gets to go home with no charges of dangerous driving/Impaired Driving thanks to vitamine H? It was the cocaine/alcohol that MADE me do it . RIGHT. People are not responsible for their actions, specially the mentally ill, it’s those unbalanced brain chemicals right?

  8. What frightens me about this is the legal precedent this will set, and how it will affect practitioners.

    You do an test against a patient’s will. If it’s negative, you are sued for violating patient autonomy.

    If you follow the patient’s will and miss something critical, you are sued.

    Either way, you are sued. The only “good” outcome is if the patient is seriously injured and you catch it against their will.

    Who wants to practice medicine in an environment of constantly worrying how to avoid being sued?

  9. Whitecoat says:
    Retrospective analysis by old school experts will getcha every time.
    Fear the bad outcome.

    Right, and using this logic, evidence-based treatments will never gain traction and medicine will return to the dark ages.

    To address the article and Mark P.’s comment, people ARE responsible for their actions, when they are of sound mind. Conversely, if they aren’t of sound mind (medically), then they aren’t responsible–period. That doesn’t mean they get to go home and watch TV; if the “unsound” person is a risk to others, then they get involuntarily detained/institutionalized (usu. as per the dx of mental health professionals, not the harried EM doc).

    We don’t know the specifics of the case. If he was indeed the victim of a falling object that at least had a component of downward force, it is more than reasonable to assume that there could be a remote injury far lower than the head lac/c-spine justifying the rectal exam. We don’t know how much the doctor explained what he was doing to the patient. Clearly, the patient had some wits about him and deserved the benefit of the doubt that, while legally might not be required, common sense would dictate he be told what is going to happen and why. If this was not done in the absence of REASONABLE evidence to show altered status, woe to the hospital and rightly so.

    It bothers me greatly that he spent 3 days in detention after being medically “assaulted,” but this is a very gray area. What’s not gray, IMO, is that this should be a non-issue for the patient’s criminal record; ie, he wasn’t charged with anything. The logic that justifies the patient was non-competent so the physician can proceed with tx in the presence of refusal can’t mean that he can be charged for combative behavior when the tests come back normal. The same logic in reverse means that if nothing was wrong after all, the hospital/physician need to drop their drawers for their turn. The doctor and patient are protected TOGETHER or neither at all.

    That’s the meaning of the law, anyway…

  10. LisaMarie says:

    I wonder if the underlying situation might be pretty simple. Suppose you had the patient described in the article, and after he was alert and oriented he told you that he was really upset that you had done a rectal when he asked you not to. Would you:
    1. Apologize for the discomfort and explain why you had to do it to assess him;
    2. Tell him “suck it up, jerk, you’re lucky we cared enough to try to save your life.”
    The comments left by doctors on the comment thread about the case on Kevin MD seem to be tending toward #2. I see a real failure there to understand that even though from a doctor’s perspective the rectal is simple and does not cause much pain, for the patient it’s really difficult. That’s true even when you consented, and when you didn’t, it’s hard to explain to someone else just how you feel afterward. You sound like the kind of doctor who would have taken that kind of situation very seriously. I wonder if the guy’s doctors did not, and ended up basically blowing off a very upset patient, resulting in a situation that just escalated ridiculously out of control. It’s hard to tell just from news accounts, but I do wonder.

  11. The guy didn’t find out the purpose of the exam until after he was jailed. Perhaps the doc could have been more clear. As far as CYA goes, just have the patient sign a release saying he refused the exam. Forcing it is wrong!

  12. I am also bothered with 3 days in detention. Either guy is of sound mind or he isn’t. If he is enough of sound mind to be jailed for hitting the doctor while resisting the exam, then he is enough of a sound mind to refuse the test after the purpose of the test and the risks of not doing so are explained to him. If they forced him to have the exam because they thought he wasn’t of sound mind because of head injury, then they had no business getting the police involved. It’s either one or the other. I would honestly like to understand how you can consider him not competent enough for informed consent yet competent enough to be responsible for hitting the doctor while resisting.

  13. I just knew when I saw this story on the news that GruntDoc would post it and that there would be some lively discussion. I am not disappointed!

    I agree with LisaMarie that is sounds like the stituation escalated out of control on all sides.

    I also agree with WhiteCoat about the legal implications of the “gold standard” in medical care, even when it becomes outdated. A current example of that would be the evidence that now does not support high dose steroids in spinal cord injuries. There never was strong evidence, but it was one of those “well, you gotta do something”. The personal injury lawyer will destroy you in front of a jury if a patient you cared for with a spinal cord injury suffers para or quadraplegia and you did not give the steroid in the acute phase, even though the most recent evidence is that it might actually be harmful.

    I did care for a patient after he had a 30 foot fall who had a pelvic fracture and adamantly refused to allow me to do a rectal. I suppose I could have overpowered him (he was strapped to a spine board, was very intoxicated, and I have my ER “goons” available), but I backed off, negotiated with the trauma surgeon, and the retrograde urethrogram was done while he was in the OR. He did have a ruptured urethra.

  14. Kitty’s response: “I would honestly like to understand how you can consider him not competent enough for informed consent yet competent enough to be responsible for hitting the doctor while resisting.” represents the best ethics and logic in resolving the dilemma of whether what was done was ethically right. ..Maurice.

  15. How is that, Maurice Bernstein, M.D.? Kitty’s question is completely off base and shows no respect at all for the facts of this case.

    The quandry of the doctor, “is the patient competent to refuse the examination, given there is an injury to his head” has nothing to do with the concern of the police officer: “is this citizen/patient who is assaulting E.D. staff a dangerous criminal?”

    Two different ethical actors asking and answering two different and unrelated questions that just happen to involve the same person. There is no inconsistency at all. And since no charges were levied, no court will examine the question whether the patient bears any criminal responsibility for having assaulted emergency room personnel.

    Kitty, in her post, and apparently you also have presumed there is a single actor here judging the patient to be at once incompetent to give consent for an examination and yet criminally responsible for an assault. That is simply not the case.

    And as for violent persons who commit assault; they can be rightfully arrested, prosecuted and punished, even when they suffer from mental illnesses that would make a reasonable ethicist question their competence to make significant personal decisions. Our jails are full of such people.

  16. kimberly jones says:

    A relative of mine who is very doctor shy read this story. She nows says she would not visit an emergency room under any circumstances. There are many people who view doctors as the enemy. Stories like this don’t help. I will wager that the hospital loses this lawsuit. They should have had him sign a release form and sent him on his way. After all he spent three days in jail.Most doctors are competent. These apparently were not.

  17. Mud puppy farms says:

    Anyone hit in the head is not themselves right after it. I was a nurse for a year when I was in a MVA and broke the steering wheel with my head. When I woke up in the ER, I was confused had a headache from hell and was vomitting. I slightly remember a nice doctor put on some gloves and telling me he was ” the genital surgeon “. I think I told him there was nothing wrong with my genitals, that’s when I heard him say ” general”. Not only did I feel stupid, but I got the exam to check for bleeding.
    I have seen it from both sides and would assume on the side of safety to the patient whether they like it or not. I know things did’nt make sense to me at the time, and I knew the routine but, again even if they don’t appear impaired they probably are. Better to provide standard of care then miss something life threatening.

  18. Goatwhacker says:

    Kimberly Jones – I think there is an aspect that you and much of the public are not getting with this case, namely was this patient in sound mind or not when he was in the ER. If this patient was confused or disoriented a doctor can’t have him sign a release form and be on his way. That is malpractice. You can’t send out an injured person if his judgment is impaired.

    This is really the crux of this issue and the articles make very scant mention of it. I can’t tell from the articles whether he was oriented or not. I’m not trying to defend the ER doc here, I’m just saying there is important information about this case that we’re not getting.

    I will say this – based on the limited information we’re given I think forcing the rectal exam was excessive. The problem is there isn’t enough info to say for sure.

  19. I really enjoy reading posts like this that offers a doctor’s point-of-view on health news. God forbid I’ll ever need to go to the ER for anything but it only helps as a patient to have some understanding of the complexities that go into a doctor’s decisions.

    Thank you Grunt Doc for your interesting blog.

  20. CHenry wrote:
    How is that, Maurice Bernstein, M.D.? Kitty’s question is completely off base and shows no respect at all for the facts of this case.

    You clearly have more facts than we do–do you mind sharing your source?

    …concern of the police officer: “is this citizen/patient who is assaulting E.D. staff a dangerous criminal?”….And as for violent persons who commit assault; they can be rightfully arrested, prosecuted and punished, even when they suffer from mental illnesses that would make a reasonable ethicist question their competence to make significant personal decisions. Our jails are full of such people.

    Um, no. First of all, police officers don’t determine who is and who isn’t a “criminal;” the courts do. Second, the very fact that you yourself say “question their competence” automatically means they can’t be prosecuted until that’s resolved, since 1) non-competent individuals can’t be tried, and 2) even if we were to overlook that point of ignorance, the burden of proof in a criminal setting is “reasonable doubt,” (oversimplified, obviously) which “a reasonable ethicist” questioning competence kinda takes care of. Our jails are NOT full of such people (though a few of them certainly could have fallen through the cracks); our mental institutions are.

  21. In addition to what Enrico said, how exactly did the policeman who arrested the man happened to find out about this incident? Is it ER policy to have police at hand in the examining room and witness rectal examinations? Or was it the doctor and his stuff who actually called the police and pressed charges? In the former case, what was the policeman doing there? In the latter, the person who called the police and choose to press charges was someone who actually did the exam; i.e. this person clearly thought that the patient was responsible.
    Oh and the charges were levied, if you read the last sentence of the article, you’ll see that the charges were dismissed by the judge not by the hospital. Since he had to go to court at all, it means the hospital did try to press charges. So yes, there is inconsistency here.

  22. To Enrico:

    I have the facts you have (and those reported in the three or four stories published online about this case.)

    The conclusion of the doctor in the ER does not automatically have to be the same as the prosecutor reviewing the case. Certainly it makes for a better case if there is agreement about competence. And where have I said it was the job of the police to determine culpability or guilt? It seems you are the one over-reading my post. The question of the police officer is whether the patient is assaulting the doctor (versus exercising self-defence, I suppose) and should he be arrested and restrained.

    As for who can be tried or not, the issue of competence is one of degrees, as you probably know. One can indeed be mentally ill and still be prosecuted and further still be convicted, provided the accused is thought able to know what he was doing was wrong. That is really besides the point, because the decision to prosecute is not the privilege of the police, or for that matter the victim wanting to press charges but that of the state’s/district attorney. (And why you aren’t questioning that decision makes me wonder.) But the police can still arrest persons who aren’t competent if they are thought dangerous or are engaged in acts that would be criminal if done by a competent person (no news there, I hope.)

    As for who goes to jail, I defer to my experienced colleagues in forensic psychiatry who tell me what I have written above: mentally ill criminals do indeed get convicted and sentenced. And there are a lot of them behind prison fences, not just in state hospitals.

    To Kitty:

    It is not unusual for police to be posted in city emergency rooms; they certainly are in DC and Detroit. Some ER’s actually have jail cells for injured suspects. In this case,the stories don’t say how exactly the police became involved. Who called them probably isn’t important. And the fact that the doctor could call the patient’s competence one way and the cop, ignoring questions of competence and only dealing with a combative citizen punching doctors in the emergency room deciding to arrest that person is precisely my point. When it comes to deciding what to do with the patient once arrested, others can parse the issues of competence, which evidently the magistrate did.

    Was the doctor right and the patient not competent? I think that question will be germane if this civil case goes to trial. If the doc loses, though, it will be the patient/plaintiff/former-accused who, to paraphrase you, will be the one to have it “both ways.”

  23. kimberly jones says:

    Two of my sisters are R.N.’S. My nephew is a medical student. I am a History teacher. My dad is a personal injury attorney. Although I consider myself the Einstein of our family,guess who makes the most money. I understand one thing well. The hospital goofed when they had the guy arrested. If he wasn’t of sound mind,he should not have been in a detention center. The doc’s ego got out of control.My dad said he would love to represent this guy and he never loses.

  24. TheNewGuy says:

    The doc’s ego got out of control.My dad said he would love to represent this guy and he never loses.

    Ah, the irony.

    Must… resist… commenting…

  25. kimberly jones says:

    Are you referring to my dad’s ego or mine? I admit I have a big ego. My sisters tell me so all the time. As to my dad his bank account is much bigger than his ego. I should have been an attorney myself, but alas I have a passion for The Romanovs and all things historical. All that aside I still say the hospital was wrong to force a procedure the man did not want. If he really is unable to work because of what happened he should be compensated. there must be some merit to his case or it wouldn’t be going forward.

  26. I love it when patients refuse rectals. It’s not like I’m just itching to stick my finger up their ass anyway. That’s one less pair of gloves wasted, one less hand washing, one less chaperone to find, and ultimately a couple fewer wasted minutes that I can spend on other more meaningful and financially-reimbursable pursuits.

    Next.

  27. “If the doc loses, though, it will be the patient/plaintiff/former-accused who, to paraphrase you, will be the one to have it “both ways.””
    Not really. The patient didn’t just attack the doctor out of nowhere. The doctor was trying to do something to the patient that the patient doidn’t want done, the patient was defending himself and accidentally hit the doctor while doing so. If he was resisting because he was hit on the head, then he wasn’t responsible. If he was resisting because he was of sound mind and simply didn’t want test done, then he still had a right to self-defense. And being jailed, loosing days of work, having to go to court is also something he shall be compensated for. By the way, for the case to even go to court, the doctor must’ve testified. Any lawyers care to comment on judicial process?

    Personally, I don’t see why this guy was so adamant against rectal exam, why it was such a big deal for him. But I also believe, that our right to refuse is very important, especially in this era of defensive testing.

    I think how the police got involved is important. Even if the policeman was in the ED, he wasn’t present at the examination itself, so he couldn’t have witnessed the incedent. If the doctor or nurses gave evidence about the incident, did they mention they thought the guy wasn’t of the right mind because of his head injury?

  28. Kimberly Jones says:

    I agree with Kitty. A person has the right to refuse. I wonder if the Doctor involved has lost any credibility because of this.

Trackbacks

  1. [...] “Force Rectal Exam”, Part 3 Posted on January 18, 2008 by coptermedic From GruntDoc: [...]

  2. [...] I missed that Slate had taken on the forced rectal exam lawsuit last week. Here’s GruntDoc on the same, plus real world experience (HT: [...]