Can you force treatment on a patient? New York lawsuit addresses key issues
Case may hinge on whether plaintiff was of sound mind
The New York State Supreme Court currently is hearing a case that addresses a dilemma many ED managers face every day: When is it permissible to force a patient to receive treatment?
This particular case involves a construction worker named Brian Persaud, who claims that he was forced to undergo a rectal examination after he was brought to the ED at New York — Presbyterian Hospital/Weill Cornell Medical Center to be treated for an on-the-job head injury.
According to Persaud, he was told he needed an immediate rectal exam to determine if he had a spinal cord injury and he adamantly objected. He was subsequently held down, but he freed one hand and struck a doctor. He was sedated and intubated, and the procedure was performed. Persaud later was arrested and booked while still in his hospital gown, but he was cleared of misdemeanor assault charges.
ED experts agree that the key issue is whether Persaud was of sound mind when he refused the treatment. "The reference case that set the tone for this issue is Schloendorff v. the Society of the New York Hospital,"1 says Gregory Henry, MD, FACEP, risk management consultant at Emergency Physicians Medical Group in Ann Arbor, MI. "In summary, it said something absolutely essential: that those of adult years and sound mind may determine their own health care."
He adds, however, that in that particular case, a full rectal exam might not even have been necessary to determine if there was any spinal injury. "You can scratch the skin next to the rectum and look for an 'anal wink,'" he explains.
Michael Frank, MD, JD, general counsel at Emergency Medicine Physicians, Canton, OH, agrees. "Whether the patient made the correct medical decision or not is entirely irrelevant," Frank says. "The only issue is whether he was competent to refuse or consent to treatment."
An even more recent case reinforces this approach, he says. It involved a female patient at Massachusetts General Hospital who had a long history of asthma. She was admitted with explicit instructions that the only treatment she should be given was oxygen. "The ED doc at that time decided she needed to be intubated," Frank relates. "She tried to run out and was forcibly restrained and intubated, ended up being discharged the next day, and suffered psychological problems. The next time she became ill, she refused to go to the hospital, which probably was the reason she died when she had another attack and refused treatment, he says.
Her father, a physician, brought the case. The Massachusetts Supreme Court ended up overturning a lower court decision in favor of the hospital. The Supreme Court ruled that adult patients of sound mind are capable of refusing treatment except in a medical emergency.2
"According to facts [of the current case], it does not appear the patient's competence was at issue," Frank asserts. "When people are assaulting you, you get violent, and this may not just be medical malpractice but assault and battery."
If people are assaulting you, it's permissible to hit them, even if they are wearing white coats, he says. "Battery is unconsented touching," Frank says. "It does not matter who is doing it."
Here Henry parts company with Frank. "It's not black and white," insists Henry, saying we must ask if there was reasonable probability the accident impaired the patient's judgment. "Had he been knocked out? Was he on drugs or intoxicated? Was he confused at all?" he poses. "This is not a case of whether there was informed consent, but whether there was informed refusal."
Henry also disagrees about whether the patient had the right to strike the physician. "You don't get to do that," he insists. "[What happened] did not justify violence." The key for him was whether the staff had reason to believe by conditions of injury or actions that the patient lacked rational capacity at the time. "I see [sick and injured] people all the time doing things that are abhorrent," Henry says. "Do I strap people down and fill them full of drugs? Yes, I do."
Guiding your staff
In light of that and other cases, what should the ED manager advise his or her staff? Henry and Frank may diverge a little on the specifics, but they agree that ED managers must conduct staff educational activities on a regular basis and that competent adults have the right to refuse certain elements of evaluation and treatment, even if that is not to the liking of the ED staff.
"What a manager needs to do is talk about the key points of Schloendorff: Is the patient an adult? Do they have reasonable faculties, normal mentation, speak reasonably, and carry on normal conversation?" says Henry.
Accurate documentation is critical, he says. "If the patient is a 19-year-old girl [needing a pelvic exam] who is sexually active but refuses a pelvic exam, I have to write and inform them that this is not an adequate exam for their problem — that I will do the best I can, but that they can't expect me to diagnose many potential problems without the pelvic exam," Henry explains. "How do I know if they have a terribly tender ovary unless I feel it?"
ED physicians face problems such as those every day, he says. "I'll go into work today, and I promise you there will be some 80-year-old woman who does not want to be admitted into the hospital with pneumonia," he says. In such cases, Henry will talk to the family about the problem, and they usually will take care of it.
"The key is to see these things coming down the pike and know what the countermove is," Henry notes. "The smart guy is asking these questions in advance."
Frank takes a more cautious approach. "The take-home message for ED managers is that it does not matter if a patient is making a wrong medical choice. That is not an excuse to override the patient's wishes," he says.
Frank recommends regular inservices and staff discussions on this issue. "If these things are being done to patients who are competent to refuse treatment, then there's a real problem," he warns. "The only reason you are allowed to touch a [competent adult] patient is if they have given you consent. Otherwise, it's battery."
References
- Mary E. Schloendorff, Appelant, v. The Society of the New York Hospital, Respondent. Court of Appeals of New York, 211 N.Y. 125; N.E. 92. Decided April 14, 1914.
- Shine v. Vega, 429 Mass. 456, 709 N.E. 2d 58 (1999).
Sources
For more information on forcing patients to receive treatment, contact:
- Michael Frank, MD, JD, General Counsel, Emergency Medicine Physicians, Canton, OH. Phone: (330) 493-4443.
- Gregory Henry, MD, FACEP, Risk Management Consultant, Emergency Physicians Medical Group, Ann Arbor, MI. Phone: (734) 995-3764. Fax: (734) 995-2913. E-mail: [email protected].
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