The Thirty-six Million Dollar Rectal Exam

Commentary by Zackary Berger MD PhD, PGY-2, Health Care Policy Section Editor

Medical protocol and consent on trial in the New York Supreme Court.

In 2004, while working at a construction site, Brian Persaud was hit in the head by a large wooden plank, lost consciousness, and was taken to the emergency room at New York Presbyterian Hospital. There he received what he says was an unjustified digital rectal exam. Persaud brought suit against the hospital, and soon, four years later, the case will come to trial in the New York State Supreme Court. The arguments in the case are legal, but the underlying issues are also medical and ethical.

Persaud claims that the rectal exam was medically unwarranted and clearly refused by him, and thus (to use his attorneys’ language) an “assault, batter, and attack.” (Persaud is asking for damages in the amount of thirty-six million dollars.) Even though the New York – Presbyterian emergency physicians have not yet filed their defense, they might claim that since Persaud had been involved in a trauma, he was not competent to refuse a part of the exam which is essential to trauma protocol.

The legal questions are: Were the doctors guilty of battery against Persaud? Did he explicitly and reliably refuse? The medical-ethical questions, however, are more complicated and more fundamental. What does it mean for a patient to refuse a procedure? Are there situations in which patients cannot (or are not allowed to) refuse? What does it mean for a procedure or examination to be part of “accepted protocol”?

“Consent” is something we routinely obtain from patients according to institutional requirements: it involves filling out a form. But consent in a stronger sense involves discussing the aims of medical care with a patient so that he agrees to a procedure autonomously, with understanding, and without undue controlling influences. Of course, there are times when consent is superfluous or (in medical emergencies) even dangerous. When must we dispense with consent? Are there procedures that are so fundamental to medical care that they can be done without consent (or, more precisely, with the “consent to medical treatment” everyone gives implicitly or explicitly by walking into a hospital)?

Of course, it depends how sick the patient is and how necessary the procedure. If physicians are to defend their clinical decisions, whether in a court, on an editorial page, or to the patient herself, they have to define, or at least think about systematically, which procedures are necessary to medical routine. In the Persaud case, the question might be: how necessary is a rectal exam in a primary trauma survey (especially when imaging is widely available and frequently used)? Emergency medicine is beyond the scope of this blog, but the general issue applies to all branches of medicine: what is part of “accepted protocol” and why?

From a legal point of view it could be argued that physicians need to arrive at a consensus about courses of treatment, to be applied in their entirety whenever there’s a life to be saved. But physicians know that the truth is different: opinions differ about treatment for many conditions, from cardiopulmonary resuscitation (its guidelines recently revised) to chemotherapy for cancer. This leaves us with a difficult question: If we doctors differ on what needs to be done in a life or death situation, how could anyone defend themselves against a Persaud?

The best defense, both legally and ethically, might be from the other direction: not to argue that our protocols are undisputed (because they’re not) but to be careful when assessing a patient’s ability to consent – or to refuse.

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