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…
Who hasn’t heard of or been subjected to unnecessary procedures so doctors can bill your insurance company. This one just turned out to be a bit… kinky. But its the same strategy really.
The hospital is getting off easy. Much worse can happen when you f* a stranger in the a.
Not to mention T-shirts.
Annachech, the phrase -‘kundi-hymen is intact’ is more pj than pc.
Every doctor has such a story. “It was a million to one shot, Doc!”
sandeep, the point of the rectal exam is to test for spinal damage. This particular reflex is one of a set of reflexes which, if not functional, could point to a possible serious spinal/central nervous system injury which would need further workup.
As someone who is in the medical profession, i hope that you do not think that the rectal exam performed was done simply for insurance/ financial gains.
I get it, I’m 33 and thus ancient…what does pj mean? To me, it means pajamas or someone named Patricia Jane.
5 · spram said
No-win sitch. If they didn’t do the exam and he was paralyzed, they’d be negligent, right?
At the point he is punching a doc out, is paralysis still a concern?
8 Rahul said
Good point. I should have said, if he ended up being severely injured/if there was damage. I immediately think paralysis when it comes to spinal cord injuries, mea culpa, and other cheesy Enigma tracks.
anna, yes i think the doc would be negligent if he/she did not perform the exam. As physicians, we’re taught in any trauma case, to “check all holes,” meaning check the ears for bleeding/fluid which signify trauma to the head/brain, check the mouth for obvious trauma to the mouth/upper gastrointestinal tract/major cardiac vessels, check the nose for head trauma, and check the anus/rectum for sphincter tone and possible bleeding.
Don’t get me wrong, i don’t like performing the rectal exam, but you’ve gotta do it because injuries may not be that clearly obvious
I read this story a few days ago and it made me cringe (no pun intended). The thing is that since he was hit on the head and had a construction injury they really do need to check his spinal cord.
Now I can’t for the life of me can’t figure out why the hopspital couldn’t do a better job of trying to convince him and bringing in someone to talk to him if they were really so concerned. I’m assuming if he was fine and it was a bump on the head he wasn’t still sitting in the emergency room? Because god knows there are bleeding and people with broken limbs sitting around in pain in emergency rooms and the they don’t do shit about it.
Either ways the hospital is screwed if it does and screwed if it doesn’t. Again no pun intended 🙂
3 · unni_kannan said
Forgot to add– I’m a sucker for the “chech”. ‘Round your pinky, I am wrapped.
fortunately or unfortunately i’m also a physician in this terrible medico-legal nightmare of a time to practice medicine and even performing a cesarean section to save a fetus’ life when the pregnant patient of “sound mind” objects is considered battery as we all know from that sad case in Utah (or Idaho- I get the two mixed up). I’ve had to get court orders and wake up judges at wee hours of the night to give me permission to save a life when a patient refuses intervention. It is sad when you care more about the patient and her baby then she does.
spram @ # 5 — thanks for clearing that up.
he was probably afraid they’d find a gerbil in there or something
Happened to be with some attorneys and a resident for dinner last night, and we ended up talking about this story. They brought up that tests traditionally do not have risks. Since there are no health risks associated with this procedure, hospitals will go ahead and execute the test without consent. Also, in emergency room procedures, some argue you give up your right of consent. It’s kinda inherent in the nature of an emergency room.
My two cents – if you want to bring up a point in a regulated system, it doesn’t do any good to attack.
When I commence typing “Richard Gere”, the first suggested search is “Richard Gere gerbil”. He must love that.
Not in India at least. Suicide is illegal – if you wanna do it, better get it right the first time as far as the law is concerned.
In the US – what about assisted euthanasia when the patient requests it?
6 · A N N A said
Don’t feel bad. PJ is an Indianism.
PJ means Poor Joke. It doesn;t mean that the joke is poor, or the delivery of the joke is poor. All it means is that the joke made you go groan, usually PJ is used to describe puns
What a sad story.
Stinky pinky too kinky for monkey, pucker plucker flickers recur, now seeks succour, others snicker.
Illegal and considered murder, a crime.
One can sign a document, assuming you have your faculties, prior to entering a hospital to determine at what stage life saving procedures are to be terminated. You can also have someone designated as your health care proxy (usually a family member) who would decide when life saving measures are to be terminated. i.e.: cardio-pulmonary support. In both instances, a formal document is required and usually entered into prior to the patient’s admittance.
19 · Pagla said
LOVE IT. Thank you so much for the explanation! Four years of this site and I had no idea “pj” meant anything more than matchy-matchy crap worn to impress your bed sheets. 😀
That would be some PJ party.
SPOILER ALERT for MILLION DOLLAR BABY
Illegal and considered murder, a crime.
Then tech speaking, was what happened at the end of million dollar baby, a crime?
Thanks for the information. What about outside the hospital – say I have no hands and legs and need help to die? If that’s illegal, then so much for my right to my body.
I never heard of PJ either. Then again, until yesterday, I didn’t know what DDLJ was (referenced by someone in the V for Rockstars thread). I wiki’d it and it seems to be short for a hit Hindi movie. (By the way, it looks like I saw that movie on Turner Classic Movies a while ago and it sucked. I can’t believe that movie with that one melody they keep repeating to death was such a hit).
So…you had some of these?
Don’t even say such things. You have no legal right to kill yourself or have someone else do it for you. (outside of what I outlined above) You do have a fundamental right of privacy which extends out to your body, that’s a whole other thread and other nest of issues. And HMF, the answer is yes, depending on what happened at the end of that movie.
To keep it on thread, how many fingers did the doc use? One’s bad enough but more than that…ughh (shuddering). Can any docs tell us what’s standard for this kind of exam or whether they could have used a less invasive measure?
27 · bess said
Can’t see the link but if by these you mean “Underoos” and Wonder Woman ones at that, then no. I had R2D2. 😉 I was the most popular girl in first grade, and it was entirely by accident. My mom didn’t know who the hell R2D2 was, she just wanted me to stop saying “underoos”.
Alert and oriented times three refers to a person knowing who they are, where they are, and the date and time. (I think those are the three) For somebody suffering from a knock to the noggin, I imagine the docs just wanted to know how bad the damage was.
Jangali Jaanwar, with regards to the rectal exam, the main point is to check sphincter tone. Basically, you use one finger and ask the patient to squeeze on the inserted finger (i know, it sounds awful). If the doctor can feel pressure on his/her finger, then there is sufficient tone. If not, there may be some spinal cord damage, and the doctor can consider other diagnostic techniques to find the location/cause of the problem.
And no, there is no other, less invasive method. Patients undergo rectal exams everyday. I know it’s uncomfortable for the patient, but it really is for the patient’s own good. Does anyone think docs actually enjoy doing it? Of course not, but as cliche as it sounds, they have a responsibility to their patients. In fact, this is probably the least invasive, most harmless technique.
And HMF, the answer is yes, depending on what happened at the end of that movie.
I figured most have seen this by now, so what the heck. Hilary Swanks character requested to be euthanized, and Clint Eastwood’s character complied in the end, because she was mo’cushle.
underoos woohoo and R2D2 to boot? too cool I bet you were cute and not just in 1st grade!
(And, yes, the pic is a package of wonder woman underoos) She fights the power of evil!
spram@10: anna, yes i think the doc would be negligent if he/she did not perform the exam.
This case is a test of informed consent, not negligence. I don’t think spram’s view would be upheld by his/her ER counsel, in this instance, because:
Dr. Irving Friedman, a neurologist and psychiatrist hired by Mr. Persaud’s 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.”
desi mom@13: I’ve had to get court orders and wake up judges at wee hours of the night to give me permission to save a life when a patient refuses intervention.
There is a fundamental disconnect b/w physicians and many litigants (I have not personally advocated on behalf of any, yet) on this point. Cardozo established in 1914, and many cases have subsequently established precedent, that an adult who passes a series of simple cognitive tests, can turn down any treatment. Seems pretty clear that Persaud was in this category. The hospital should pay up and saction the physician.
Spram, thank you for the information and vivid description.
32 · HMF said
I haven’t, which is why I edited your “spoiler alert” to be more specific. 🙂
Mutineers, if this case were about Rita Persaud hitting her head on an icy pavement, and the rest of the story stood, would you feel any different about the probability of malpractice by a male ER physician? Just curious.
HarlemSun, what cut do you think this Dr. Friedman is getting from the plaintiff’s team to say what they want him to say. I’m sure we can find plenty of other docs who would have advocated performing the rectal exam.
In the end, this is one of the many reasons why the healthcare system in this country is so screwed up. Ask yourself, why would the doctor in question have peformed this technique, if not for patient benefit? The doctor gets no added benefit. The rectal exam, in and of itself, likely has no additional financial compensation. I understand the confusion if the doctor went straight ahead to do some other tests, say an MRI, which would charge the patient a ton of money and be extremely more time and labor intensive and uncomfortable, but a rectal exam is standard procedure with little if no additional financial benefit to the doctor or the hospital.
I have to tell you– I wouldn’t. I think a lot of this is rooted in homophobia and the sense that something as well-meaning as a medical procedure can be construed as “gay”. Once I started reading how this is a legitimate way to check for spinal cord injuries, I just kind of shrugged because I grokked it. I can’t stand a speculum but it’s used for a reason, and that reason isn’t battery or assault. I get that you can decline treatment, sign a form that says, “I acknowledge I am now in the running for a Darwin award” and walk out, but isn’t the issue that the ER didn’t think he was capable of doing so?
I could be entirely wrong about all of this but I know that I will be instantly corrected, so I don’t mind ignorantly tip-toeing out on to this trembling branch…I kept reading that being combative is one of the signs of head trauma. At what point do you say, this person’s angry behavior perhaps indicates that my fears about an injury are true instead of this person has agency? I understand that Mr. Persaud felt violated, believe me, I understand that, but I don’t think the ER residents are heartlessly trying to prey on a man’s worst fear by doing unnecessary rectal exams. They’re damned if they do (sadists!), damned if they don’t (negligent!!).
spram@38: HarlemSun, what cut do you think this Dr. Friedman is getting from the plaintiff’s team to say what they want him to say. I’m sure we can find plenty of other docs who would have advocated performing the rectal exam. In the end, this is one of the many reasons why the healthcare system in this country is so screwed up. Ask yourself, why would the doctor in question have peformed this technique, if not for patient benefit?
Spram, I didn’t mean to imply the ER physician is getting anything out of the exam. I admire ER doctors tremendously, they do a difficult job under difficult circumstances.
Dr Friedman is a paid expert for the plaintiff, in the same way the hospital will trot out paid experts with contrary testimony. Again, I don’t think this test is about the negligent care. It is about doctors understanding the informed consent law and abiding by it, even when they feel they “might better.”
desi mom@13: It is sad when you care more about the patient and her baby then she does.
This will make patients and doctors happier, and avoid triggering litigation, something that physicians like to complain about (not judging the veracity of the complaints).
How do we know Brian Persaud is Desi?
He’s most likely Indo-Guyanese.
Harlem Sun,
I understand your position. But if Anna’s hypothesis is correct and that aggression is a sign of head trauma, how do the doctors know they have truly received an informed consent. Alert and Oriented x3 as I understand it is simply a baseline test as to knowing time, place (and I forget the third one). In and of itself, do you believe doctors should rely upon Alert and Oriented x3 to indicate that the patient has full mental faculties such that he can demand the avoidance of the test. I’m not advocating a position (I’m torn on this one – bad choice of words) just wondering.
anna@39: I kept reading that being combative is one of the signs of head trauma. At what point do you say, this person has agency instead of this person’s angry behavior perhaps indicates that my fears about an injury are true?…They’re damned if they do (sadists!), damned if they don’t (negligent!!)
A N N A, you’re right it can be (used to play hockey 🙂 And you’re right, the physician is between a rock and a hard place in terms of outcome. This is exactly where the law can be helpful to guide clear ER policies. A series of cognitive queries are on the books — date & time, location, name, profession etc. — designed to gauge agency and basic cognitive function. The issue is, often the physician’s healer/god (depending on perspective) instinct kicks in, superceding the patient’s lack of consent to a procedure the physician knows from experience, has a high probability of being the “right” choice.
My answer to that is, a cliche of a question – who knows best what is right for an adult? Informed consent was a hard-won battle in the early twentieth century and has been the bedrock on which Roe v. Wade was built among other pivotal personal health laws. No matter what you think about individual decisions to accept treatment or not, nobody knows the whole story better than the patient (among factors that nuance this decision think insurance, religion, time to recovery, employment…) and I think a physician owes him/her agency and power over their own body just as much as they owe medical advice.
Alert and Oriented x3 = Alert and Oriented as to person, place and time.
as soon as i read the word ‘kundi’ i knew it had to be an anna post 🙂
I’m with HarlemSun on this one. Noone is disputing that, objectively speaking, the rectal exam was called for and would be beneficial to the patient. The point is that the patient is entitled to consent or refuse treatment–his/her subjective evaluation of things governs the day, as long as he/she is not declared unfit to make such a determination. Here, it seems Cornell should have brought in a psychiatrist to declare Persaud mentally incompetent before they performed a forcible examination on him–I mean, really–talk about a “God complex”! The hospital wouldn’t be liable for not performing the procedure as long as they determined him to be competent and he refused. To emphasize, I’m not saying that the rectal exam was unwarranted in a rational, objective sense. It’s just that that’s not the test–voluntariness/consent is quite important–indeed, it governs here.
Was Persaud informed about the reasons for the procedure? People in the ER, with any injury or illness are scared as hell, usually. It’s hard to think rationally when you are stressed physically and mentally. And people w/ a head injury sometimes get personality changes from what i have heard. Of course, only the ER staff and Persaud know what really took place, I guess. (Or wasn’t the guy sedated or something after punching the Dr out?)
This case reminds of a comedian talking about how his doctor was “like a homeless guy trying to get the last nickel out of a payphone.” during that procedure. Then at the end the doctor tells the comedian he’ll see him next year to which the comic replies, “No, I’ll be seeing you in court next week for molestation.” (It was on Comedy Channel awhile back. I forgot the comic’s name and the show.)
I’m a lawyer, but not in NY. Without doing any research, but just relying on my general knowledge of that area of law, I think the doctor is screwed.
Cover my ass language to follow: Check with your own lawyer to determine the laws of your state as they may apply to you. This above should not be considered legal advice.
This situation is a beautiful illustration of the conflict between utilitarianism (which says “go ahead and give him the rectal exam”) and a rights-based view (which says, “his right to give or refuse consent is paramount, regardless of whether it’s objectively stupid to withhold consent”). Utilitarianism focusses on getting the best result, the rights-based approach ignores outcomes and protects the process (here, consent). You have the same conflict regarding, say, government seizure of land (could be in public interest–i.e., outcomes good), but problematic from a consent perspective.