Fust things fust: I did not come up with the title of this post; DJ Drrrty Poonjabi did when he added this story to our news tab. Talk about dedication– he got a TypeKey account just so he could submit this! His efforts were appreciated by all, in fact, one of you voted for the tip just because of all those “D”s. Since whimsy seems to be in the air right now and I like to give the mutineers what they want, I’m borrowing that wacky title. Capiche? As for the actual story:
A visit to a hospital for a bump to the head turned into a big pain in the posterior for a Brooklyn construction worker.
Brian Persaud ended up in handcuffs and under arrest when he loudly protested that doctors at New York-Presbyterian Hospital Weill Cornell didn’t need to give him a rectal exam after a piece of wood clocked him on the forehead. [NYDN]
The injury/invasion actually occurred back in 2003. Speaking of threes, what does this mean:
Medical records state Persaud was “alert and oriented times three” when he was taken to the hospital’s emergency room… [NYDN]
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 don’t do that.†[NYTCityRoom]
Everyone’s favorite line of the story, which will be on away messages, premium super-pokes and tacky, homophobic bumper stickers, soon:
The revelation about the rectal exam set off Persaud, who smacked a doctor during a struggle and yelled, “Where I came from, you don’t put anything in someone’s a——!” [NYDN]
Yes, and that’s why prostate cancer doesn’t get diagnosed, but hey, your kundi hymen is intact and that’s all that matters right?
Anyway, it’s never a good idea to smack a doctor, but that is exactly what Persaud did after he freed an arm whilst flailing and shouting about cultural mores; in response, the ER staff sedated, intubated and then had him arrest-ated. According to one of the NYT blogs, they booked him on a misdemeanor while he was still in his hospital gown. Did the indignities ever stop?
A request by the hospital to dismiss Persaud’s lawsuit was denied by Justice Alice Schlesinger, who ordered a trial to start March 31.
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.” [AP]
Isn’t vigorously contesting it what the man was objecting to in the first place?
Persaud is claiming that due to the rectal exam, he is now incapacitated by PTSD; he is seeking unspecified damages. Slate’s Explainer had this to say, in answer to “Can a doctor force you to undergo a procedure against your will?“, a question which many are asking:
A doctor can’t force anything on a patient who is competent to make medical decisions and refuses care. The 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.” Without a patient’s permission, even a simple physical exam could technically be considered battery. Taken to the extreme, this principle gives individuals the right to refuse life-saving treatment or to seek “Do Not Resuscitate” orders.
Doctors rarely ask permission for routine matters like checking your blood pressure or listening to your lungs, though, on the grounds that they have your tacit consent. They assume you’ve granted permission for a blood test when you cooperate by rolling up your sleeve for the needle. (This principle only applies to tests that can reasonably be expected in the course of an examination. A doctor can’t assume consent for an HIV test when a patient shows up with a cold.) [Slate]
And most relevant to Persaud’s case:
Doctors can act without a patient’s permission in some situations. If it’s an emergency, and neither a patient nor his family members are capable of making a decision on the spot, doctors might go ahead and presume consent. This could be because the patient is unconscious or because he or she lacks the mental capacity to make an informed decision (as determined by a mental-health professional). [Slate]
Can’t wait to hear what Sepia Mutiny’s crack cadre of MDs and JDs have to say about this one…
Rob,
I think you underestimate the juries and courts of the state of New York. If he had left that hospital and had suffered some massive spinal cord event as he left the hospital (even after all the precautions that you mentioned), I’d be willing to bet a week’s pay that he’d have a sympathetic jury and a good chance at a negligence verdict. Especially where all the hospital had to do is use one finger to rule out the injury. From a practical standpoint, the hospital chose the lesser of two evils. By doing the test, even though it may have been ill-advised, they insulated the cap of their liability. So they are liable for penetrating him for a potentially beneficial test. What’s that worth? That’s a far cry from letting him leave the hospital and find that he’s more seriously injured than thought. In terms of what a jury might award in any situation, they certainly would pay less in the first situation than the latter. Like I said earlier, I’m torn, I see the privacy issues but I have a hard time finding fault with the doctors.
51 JangaliJaanwar
I see what you’re saying but if they had a psych. evaluation that he’s competent, why couldn’t you get it dismissed in summary judgment so it wouldn’t get to the jury??
Rob,
IMO, all that the plaintiff would need to defeat summary judgment (legal papers dismissing the plaintiff’s case) is an expert to say that the hospital deviated from acceptable procedure and further, a psych eval. wouldn’t ascertain physical damage to the spinal cord while the finger test is more likely to do so. (The first being more likely to be subject to human error while the second relies on a firmer tactile response.) (just an argument – no need to buy it and take home) The hospital has its expert affidavit in its moving papers, asserting the contrary. You now have dueling expert affidavits. In my experience, it takes a brave judge to grant summary judgment when he has dueling experts. More likely, the judge says to himself/herself, “I’ve got two experts who disagree on the standard protocol of care and what is reasonable in this situation, I’m not a doctor and I don’t want to rule on something that I can get easily appealed on, I’ll let a jury determine which expert is more credible” and thus, you have an issue of fact defeating summary judgment.
Its certainly possible that a judge could grant summary judgment based on your scenario and I would certainly take that tact if I were the hospital’s attorneys in that situation, but I wouldn’t bet more than lunch on it.
JJ, It seems unfair to the hospital to not protect them if they respect the patient’s rights, but you may be right. I’m not up on the practical probability of getting summary judgment in a malpractice case.
Jangali Jaanwar@51: By doing the test, even though it may have been ill-advised, they insulated the cap of their liability. So they are liable for penetrating him for a potentially beneficial test. What’s that worth?
JJ, this is not borne out by my experience in NYC. If the hospital broke informed consent, Persaud has a good battery case. If that were upheld, any litigation would be leveraged several times over any negligence suit if he walked out and had spinal injuries, because of the mitigation of several hospital staff testifying that Persaud was a)competent and b)was informed of the dangers of refusing the exam and vigorously refused. Juries in NYS weigh in favor of patients’ rights (generally in the last 10 yrs), and in the latter case he would have shot himself in the foot by adamantly refusing treatment after passing cognitive tests. This is another reason why doctors need to understand informed consent and hospitals need to train up. As rob suggests, a psych opinion would have sealed the deal on consent and released the physician.
rob@50: Utilitarianism focusses on getting the best result, the rights-based approach ignores outcomes and protects the process (here, consent).
Rob, while I agree with the general sentiment, I think this case, and most informed consent cases are more utilitarian than process oriented, to follow your classification. Persaud could have a litany of utilitarian reasons not to take the exam, i.e. reasons that support the best outcomes for him. Extreme examples of these cases are what Dr. Kevorkian aspired to highlight and fight, whereby physicians who think they are making a utilitarian, professionally correct decision by keeping patients alive, on a tube, with aspirator, punishing drug therapies etc.; are in fact negatively impacting the patients’ lives and health outcomes (per Kervorkian). The process is the enemy for many end-of-life patients in the U.S. It is indeed a complex issue, but again, if you believe in the agency of adults, it is difficult to see Persaud’s case as a process issue.
This should have read this way:
ItsIt’s certainly possible that a judge could grant summary judgment based on your scenario and I would certainly take thattacttack if I were the hospital’s attorneys in that situation, but, I wouldn’t bet more than lunch on it.Rob,
It does seem a bit unfair, but when did fair have anything to do with being right or just. 😉 Thus going back to Anna’s original point, the hospital is caught between Scylla and Charybdis. Rob, enjoy the long weekend, and to everyone on SM, I hope you don’t find yourself in a hospital with a finger up…
If you have off, enjoy MLK day.
As a doctor who has worked in the ER for some time, I can gather from the brief (alert and oriented x 3)that this fella will win the case hands down in any court in the UK.(Should in the US as well) He is competent. He is an adult. I have actually seen a Jehova’s witness being allowed to bleed to death after a car accident because she had set up an advance directive not to be transfused under any circumstances.And many times I’ve had patients refuse P.R (per rectal)examination after minor head injuries. If they are competent, meticulous documentation, preferably witnessed by another health care worker is all that is required. In the cases of mentally incompetent patients, and minors the rule is to act in their best interest. It sometimes requires the services of a psychiatrist and the hospital lawyer to declare patients incompetent to make independent decisions.
Harlem Sun,
Respectfully, I would disagree. Let’s take an extreme situation, he ends up in a wheelchair unable to move any of his body parts and all that would have been needed to prevent that result was a simple finger test, you don’t think the sympathies of a judge and jury would weigh in favor of the plaintiff as opposed to the big, bad hospital with deep pockets. If this is his injury, a review of jury verdict reporters (especially in the bronx and brooklyn), you’ll find multi-million dollar awards against the hospital where its found that the hospital failed to follow protocol which resulted in spinal injury. Honestly, what’s the value of this battery? The price of his ego and mental anguish, a few thousand maybe, a little more, okay, not millions of dollars. Seriously, take a look at jury verdicts in some of the counties, I think you’d be stunned.
BTW, your hypothesis is based on the premise that he was competent at the time he gave consent. Isn’t it possible an expert would argue that the hospital should not have taken the chance the plaintiff was competent to give consent simply based on his aggression. The psych eval. doesn’t do anything to determine if there’s a latent spinal cord injury. Thus leading back to the dueling experts. As I mentioned with Rob, I don’t disagree that the scenario he posited would have a chance of success, I just don’t see it as being as conservative and protecting the hospital as well. (like the finger test the hospital actually performed).
I guess that’s what makes for good horse races and lawyers in court litigating cases. 😉 Speaking of which, I have been a dilettante this week, so I must get back at it. I’m glad both Rob and you are aboard, always like to see how other people process information and what results the come to, especially when they are lawyers. (You may have been around before and I never noticed, my apologies if that’s the case).
I heart our newest commenters. Great batch, this Winter ’08. 😉
I don’t know if anyone’s posted a link to the Family Guy episode with Peter’s rectal exam yet but it’s soooo relevant I’m going to risk being redundant!
60 · Vanya said
I don’t think they have and I love FG, so thank you kindly for the phunny.
This may sound insensitive, but does “incapacitated by post-traumatic stress disorder” seem a bit overblown? This kind of thing is what gives plaintiffs with substantive medical malpractice damage claims a bad name. If I were Persaud, I might be afraid of someday karmically reaping a colostomy after being admitted for gallstone removal.
How hard must a hit on the head be before
mymy friend’s doctor is forced to do a rectal exam? My ‘friend’ McSleazy wants to know.Oh, and that reminds me of a recent case in my ward where a bed bound old lady with impaired swallowing came in with an aspiration pneumonia (due to her impaired swallowing, she was choking on the food, causing the pneumonia). We treated the pneumonia which in itself has a high mortality rate in her patient subgroup, but then she refused all forms of assisted feeding. We tried talking, cajoling, pleading. The family did likewise. She remained adamant that she didn’t want either a naso gastric tube or a PEG.We called in the psycho gerries (psycho geriatricians) who concurred that she was of a sound mind. She gradually became weaker and weaker and died in a few days. Nothing much we could do except document and observe.
I have a few things to say.
First, let this be a lesson to all of you that hindsight can sometimes cause a stink. Second, Mr. Persaud, sorry if you feel like you are a butt of my jokes right now. And, turd, I am sure I will be the one feeling like an ass when you come victorious out the other end of your lawsuit.
(P.S: Anal-yze this was me.)
Call me a cynical realist, but I have never believed in glove at first smite.
everybody is allowed to be stupid. Lots of patients leave without getting what is necessary to evaluate them properly. I usually make sure they understand what they are refusing and what is likely to be missed. quite frequently, if the time is taken to talk to the patient, they will change their mind. The rest of them continue on their inexorable march towards a Darwin award. Thats okay too. Everyone cant live to be a hundred. I dont wring my hands too much over the 80-90+ year old who made an informed decision to not be tube fed intubated and mechanically ventilated and then undergo bone crushing CPR by a 200 lb tech. I try to make their passing easier in whatever way possible. THAT also is a crucial role that doctors forget about.
If anyone is interested, go to Gruntdoc.com. He is a residency mate and a great doc-he sums it up pretty well.
i can sympathize with persaud and hope he wins. if he said no – doesnt this get characterized as an assault – especially if they forcibly did the procedure out of anger for his havign struck the doc.
I think that sounds incredibly sanctimonious… many pregnant women have read and researched their options and know that every intervention increases their chance of having to get a c-section and risks to their unborn child.
Commonly abbreviated in notes as A&Ox3 [alerted and oriented, 3 ways] refers to awareness of self and the surrounding environment with respect to any three of person, place, time and event, i.e., one has the functional ability to know and understand (cognize) who she is, where she is, when it is and what has happened to her. Typically only the first three (3) parameters are assessed by simple conversation with the health care professional (or designate) leading to the A&OX3 assignation. If the patient is oriented to only two (2) of the parameters, he would be notated as being A&Ox2. Thus, “person, place and time” is quite right. It is hard to recall the date (and thus downgrade the orientation level of the patient) because the lights in the ER are always on and we just know when it is time to go home 🙂
My Dadi (grandmother on my mother’s side) refused all treatment for blood pressure when she was in her 60s. She died peacefully.
Ammi (grandmother on my father’s side) was basically alive due to the miracle of modern medicine. She died at the grand old age of 85. However, last 5 years of her life, she couldn;t walk, couldn;t talk, couldn’t see, and didn’t recognize people.
We used to think that Dadi lost her mind, but after seeing Ammi, I’m not so sure anymore
69 · khoofia said
Khoofia, i agree
I am a gastroenterologist, and Every day, I have to do colonoscopies, I have been taught that a rectal exam or a colonoscopy without consent is assault and can be prosecuted as such. Now in this case, the xam was needed, but forcible sedation and intubation, without a psychiatric opinion diagnosing the patient as incompetent is another problem for the doctor and hospital.
Both are S-C-R-E-W-E-D
You managed to insert a kundi joke in there Anna !! touche’
Watching the Australian Open between Mirza and Venus Williams. Looks like India has its share of useless lawsuits too. Some asshole lawyer filed a lawsuit because Mirza’s feet were near the indian flag in some picture. If cnvicted, she could have faced jail time. What kind of useless law is this?
Back to this case, I wonder if the same lawyer who is representing Persaud would be the first to file a case against the doctor if they did not check his ass.
Revenge of the Sooth, perhaps?
P.J = Poor Joke?? That sounds a little classical. I wonder…I would better stick to the abbreviation I know… Pakau joke 🙂
am i the only one who feels a little bad for this guy? i don’t know how other desi men would handle that…
Allopathic medicine is Western and the insertion of digits could be viewed as a form of imperialist violence against the East. desi progressives & reactionaries may agree that this is an outrage, but for altogether different reasons
Also, the introduction of said digits could possibly stimulate the prostate, leading to pleasurable sensations. This would be a direct affront to the long and venerable tradition of asceticism among reactionaries.
akak, you are right that most women at least know what a c-section involves and have done some reading or have taken a class that provides a nice overview of the procedure. However, there are non-medical folks out there (like doulas, etc.) who make women feel like failures for choosing an epidural or for needing a cesarean delivery.
There is a reasonably high number of frivolous lawsuits in India, because of the concept of PILs. PILs do make access to justice easier, but it also lowers the bar for easily offended nut jobs to cause significant annoyance. If I recall correctly, this flag offense issue has led to lawsuits against Narayana Murthy for cutting a cake with an Indian flag on it, some actress for wearing a saree with the flag on it, and so on. There was a discussion about this on SM a few months ago, and here’s a rediff article on the phenomenon (which I haven’t read).
Rahul, that reminds me of the same sort of ridiculous American-flag lawsuits over the years.
Anyone who values a symbol above common-sense, their own resources, or human life is a certifiable idiot, no matter what country they hail from.
Yes, and the constant stupid political grandstanding between Dems and Republicans about flag burning, or the innuendo about Obama not putting his hand over his heart during the pledge, are evidence of that. I wasn’t implying that Americans don’t fall prey to this nonsense, but the bar for prickly idiots to become nuisances does seem lower in India, since the judicial doctrine allows them to file suit even if they have no horse in the race (as compared to the onerous requirement of standing in the US, which the “constructionists” (aka rich white men, and I include Clarence Thomas in that list) on the Supreme Court keep tightening in an effort to prevent people from filing lawsuits).
hahaha… kundi hymen… hahahaha
anna, you just made my monday.