Forced rectal exam raises consent issue
April 1, 2008 5 minutes read
Forced rectal exam raises consent issue
A hospital in New York City is being sued by a former patient who says staff forced him to undergo a rectal examination even after he vehemently refused and fought the doctor and nurses, who then sedated him and went ahead with the exam. The case has ignited a debate over whether patients can refuse such treatment and how medical professionals should handle these situations.
The incident occurred on May 20, 2003, at New York-Presbyterian Hospital/Weill Cornell Medical Center. Thirty-eight-year-old construction worker Brian Persaud of Brooklyn, NY, was taken to the hospital's emergency department (ED) after a workplace injury to his head. He received eight stitches to his head, but he also was told that he needed a rectal exam to check for a spinal cord injury. Persaud adamantly refused, but the physician insisted and had staff try to hold Persaud down, according to Persaud's attorney, Gerard M. Marrone, JD, of Rego Park, NY. During the struggle, Persaud struck the doctor, who then ordered him sedated.
The doctor proceeded with the rectal exam, finding no injury, according to the lawsuit filed by Persaud. When he woke up, Persaud was arrested for hitting the physician and taken to the police station, still in his hospital gown, to be booked for misdemeanor assault, the lawsuit claims. The criminal charges were later dropped.
Marrone says the episode left Persaud psychologically damaged. He is unable to work and is under the care of a psychiatrist, Marrone says. The lawsuit against the hospital has been winding through the legal system for years, but it is in high gear now that the State Supreme Court refused to grant the hospital's petition to dismiss the case.
Kathleen Robinson, a spokeswoman for the hospital, tells Healthcare Risk Management that while hospital officials cannot comment in detail while the case is ongoing, "we believe it to be completely without merit and intend to vigorously contest it."
Lessons for risk managers
The case should make risk managers consider how a similar situation would be handled at their own facilities, suggests Vicki Rackner, MD, a surgeon in Mercer Island, WA, who has been a consultant in many malpractice cases. Rackner points out that, contrary to how the story often was portrayed in the general media, a rectal exam may have been appropriate even though the patient ended up with only stitches for a head wound. If the patient was being examined under a potential trauma protocol, reasonable for someone coming to the ED after a construction accident, the physician is obligated to check the entire body for potential injury.
"But patients need to consent to everything you do to them," she says. "There are some times when the patient's decision is hard to understand and hard to accept, but ultimately it is their body and their decision."
The tricky question is whether the patient really was competent to refuse treatment, and Rackner says the mere fact that the patient protested did not mean the care team should have just stopped treating him. In an ED, it is very common for patients to protest and say no, even ripping off their oxygen masks and trying to remove intravenous lines, she notes. Much of the necessary care is invasive and uncomfortable, and patients often are in an agitated, combative state as a result of their injuries and emotional distress.
"If ED staff just stepped back and stopped every time somebody said, 'No, don't do that,' nobody would ever get treatment in the ED," Rackner says. "Patients say that all the time, and you put the mask back on them. Part of emergency care is doing what's right for the patient even when they don't understand that it's necessary."
There is a fine line, however. Rackner says clinicians must be able to distinguish between the typical resistance driven by fear and the more reasoned refusal of treatment. That will be a judgment call, and sometimes a difficult one, she says. The question becomes more difficult when the patient may have head trauma, which can cause combativeness, she says.
Documentation is key
William Weiner, JD, a partner with the law firm Fox Rothschild's Health Law Practice Group in Warrington, PA, says clinicians must be given leeway in an emergency situation that would not be acceptable otherwise.
"In any other situation, we want to see the physician take the time to clearly and thoroughly describe the benefits and risks and take the time to discuss the patient's concerns," he says. "But in an emergency situation, it's not reasonable to expect that, and sometimes you will have to defer to the physician's judgment."
In that case, the supporting testimony of witnesses can be crucial, Weiner says. Good documentation also can make or break such a case, Rackner adds. A detailed chart that describes the patient as "combative and flailing arms on presentation," for example, could help justify proceeding with an exam against the patient's wishes.
An immediate review of these incidents can be helpful, Weiner says. If a physician encounters a situation in which he or she overrides a patient's refusal of treatment, it may be wise to have an after-the-fact meeting with the risk manager or the department head to document the circumstances and why that decision was made. Depending on the severity of the incident, it might be a good idea to collect witness statements as well, Weiner says.
Rackner also suggests that risk managers should remind physicians about the possibility of being sued for forcing a patient to undergo treatment. Physicians often press for further examination and treatment, even when the patient initially resists, because they fear being sued for not doing everything they should have, she says. Remind them that going too far in the other direction also can bring a lawsuit.
"The challenge is that physicians genuinely think they know what is best for the patient," Rackner says. "These situations are driven by good intentions when the doctor is so sure he or she knows what is right for the patient and just won't take no for an answer."
Sources
For more information on refusal to consent to treatment, contact:
Gerard M. Marrone, JD, Rego Park, NY. Telephone: (718) 261-1711.
Vicki Rackner, MD, Mercer Island, WA. Tele-phone: (425) 451-3777. E-mail: [email protected].
William Weiner, JD, Partner, Fox Rothschild, Warrington, PA. Telephone: (215) 918-3635. E-mail: [email protected].
A hospital in New York City is being sued by a former patient who says staff forced him to undergo a rectal examination even after he vehemently refused and fought the doctor and nurses, who then sedated him and went ahead with the exam.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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