Legal News

Can a Doctor Force a Procedure Against Your Will?

By Peter Lattman

A loyal Law Blog reader pointed us to this item on the Times’s City blog yesterday afternoon. The question presented deals with the sticky issue of informed consent: “Under what circumstances can a patient in an emergency room be forced to submit to a procedure that doctors deem to be medically necessary?” Here is a sketch of the facts as reported by the Times and asserted in the complaint:

Brian Persaud, a 38-year-old construction worker, says he was forced to undergo a rectal examination after sustaining a head injury in an on-the-job accident at a Midtown construction site. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head. Persaud says he 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.” As Persaud resisted, he freed one of his hands and struck a doctor. Then he was sedated with a breathing tube inserted through his mouth.

After he came to, Persaud was arrested on assault charges. His lawyer, Gerrard Marrone, got the criminal charges dropped and then sued the hospital. The hospital says it didn’t do anything wrong. “Psychologically, it changed his life completely,” Marrone told the Times. “He hasn’t been able to work. He has absolutely no trust in the system at all: doctors or the police. He has post-traumatic stress syndrome.”

Slate picked up on the story yesterday and featured it in its essential “Explainer” column. Can doctors force a test or procedure on a patient, it asked. “Not without a really, really good reason,” says the Explainer. “A doctor can’t force anything on a patient who is competent to make medical decisions and refuses care.” There are exceptions — certain emergencies, if the patient is unconscious or lacks mental capacity.

The case is set to go to trial in March in New York state court. O Law Blog readers, what are your thoughts?

Full post as published by Law Blog - WSJ.com on January 17, 2008 (boomark / email).