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Some Legal Fun With Rectal Exams
(And he doesn't like being 'poked' on Facebook, either.)

rectum redacted anal sex anus prostate gland Above the Law blog.JPGA case going to trial next month raises some, er, probing questions. From the NYT's City Room:

Under what circumstances can a patient in an emergency room be forced to submit to a procedure that doctors deem to be medically necessary? That question — and the notion of informed consent — is at the heart of a civil case that is about to go to trial next month in State Supreme Court in Manhattan.

Brian Persaud, a 38-year-old construction worker who lives in Brooklyn, asserts that he was forced to undergo a rectal examination after sustaining a head injury in an on-the-job accident at a Midtown construction site on May 20, 2003. Mr. Persaud was taken to the emergency room at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, where he received eight stitches to his head.

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.”

C'mon, Brian. Why not have a more open mind (among other things)? Don't knock it 'til you've tried it.

As Mr. Persaud resisted, he freed one of his hands and struck a doctor, according to the suit. Then he was sedated, the suit says, with a breathing tube inserted through his mouth.

After Mr. Persaud regained consciousness, he was arrested, then taken — still in his hospital gown — to be booked on a misdemeanor assault charge. Gerrard M. Marrone, who was Mr. Persaud’s lawyer, got the criminal charges dropped, then helped Mr. Persaud file a civil lawsuit against the hospital.

For more discussion -- including additional facts about the case, legal discussion, and comment from the hospital -- check out the full post, by the indefatigable Sewell Chan.

Update: More about involuntary rectal exams from Slate (via WSJ Law Blog).

Forced Rectal Exam Stirs Ethics Questions [City Room / New York Times]
But I Don't Want a Rectal Exam! [Slate]

Comments
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Posted by Primero | Permalink Wednesday, January 16, 2008 4:17 PM

Si Senor!

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Posted by first | Permalink Wednesday, January 16, 2008 4:18 PM

first hahahha

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Posted by guest | Permalink Wednesday, January 16, 2008 4:22 PM

Fairy Queen posts on Rectal exam... big surprise.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:23 PM

wow, held down and fingered... sounds like prom night!

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Posted by guest | Permalink Wednesday, January 16, 2008 4:24 PM

is Lat gay?!?!

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Posted by guest | Permalink Wednesday, January 16, 2008 4:26 PM

wow, held down and fingered... sounds like prom night!

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Posted by guest | Permalink Wednesday, January 16, 2008 4:27 PM

I am going home to give my girlfriend a forced gyno exam...

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Posted by guest | Permalink Wednesday, January 16, 2008 4:28 PM

It continues to shock me to see how some men, especially those in the working class, are so terrified of breaking some imagined "gay hymen" in their butts. This man was willing to risk his life to prevent someone from sticking a finger in his ass.

What a pussy.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:30 PM

the first few times, i got a rectal exam in my annual checkup/ Then I started to wonder? Is this necessary?... and finally I asked my dentist why he included that service?!?

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Posted by Byron De La Beckwith VII | Permalink Wednesday, January 16, 2008 4:31 PM

My daddy told me, "You can't trust a man what's made of gas!"

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Posted by guest | Permalink Wednesday, January 16, 2008 4:32 PM

It is not homophobic... it is gross, uncomfortable, painful and a crime against God and nature.

Is my "hyman" intact if I merely fingered (or shampoo bottled) myself? Does that make me "gay"?

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Posted by Derek | Permalink Wednesday, January 16, 2008 4:33 PM

Put me in charge of some these bald motherfuckers

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Posted by guest | Permalink Wednesday, January 16, 2008 4:33 PM

"Working class"? Oh because the very rich and very poor -- or otherwise unemployed LOVE fingers in their butt -- especially when held down.

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Posted by roscoe | Permalink Wednesday, January 16, 2008 4:35 PM

4:32 = worst post ever

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Posted by guest | Permalink Wednesday, January 16, 2008 4:36 PM

Regardless of this guys fairy terror, if he doesn't want a rectal exam then there is no reason he should be sedated and forced to have one. Doctors have such a god complex it's ridiculous.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:36 PM

4:32...taking a finger, bottle or penis in your butt does not make you gay. But if you suck a guy's penis... you are GAY!.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:36 PM

I used to think that rectal exams were normal until I finally asked the doctor how he performed the procedure with both of his hands on my shoulders.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:38 PM

what would frat stud say?

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Posted by guest | Permalink Wednesday, January 16, 2008 4:39 PM

Guantanamo doesn't sound so bad anymore.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:40 PM

this board is very immature, and I am surprised Lat would encourage and post such homophobic nonsense. (that is what frat stud would say)

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Posted by guest | Permalink Wednesday, January 16, 2008 4:40 PM

4:28 - I agree; he is clearly a jackass. But shouldn't that be his choice? Let him take himself out of the gene pool by refusing the exam. We let people engage in free to will make plenty of decisions (at least slightly) more ridiculous than refusing to have a finger stuck up their ass; it just seems he should be "free to be stupid" if he so chooses.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:41 PM

Law school will be very hard... for you--so leave your lunch boxes at home.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:44 PM

Lat asks in the post "Why not have a more open mind?"

But he already did... isn't that why he was getting stitches?

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Posted by guest | Permalink Wednesday, January 16, 2008 4:45 PM

Have you ever taken a train and eaten it, piece by piece... AFTER you just derailed it with your penis?!

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Posted by guest | Permalink Wednesday, January 16, 2008 4:46 PM

ACLU is going to have a field day on this one! Will be another internal struggle to take a public position...

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Posted by blah-clerk | Permalink Wednesday, January 16, 2008 4:46 PM

Ok, the guy is a weanie, but just because someone is a doctor it doesn't mean you can administer medical care by force (especially when the patient's life isn't immediately in danger).

I wonder if the hospital or doc sent a bill? That is at least one distinction between this and sexual assault... usually the aggressor doesn't bill the victim for his/her services!

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Posted by guest | Permalink Wednesday, January 16, 2008 4:47 PM

Rectal exams are standard operating procedure for head trauma and doctors are terrified of getting sued; of course they made him take it.

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Posted by Anonymous | Permalink Wednesday, January 16, 2008 4:49 PM

He's a "jackass" and a "homophobe" because he refused a rectal exam after seeking treatment for a head injury?

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Posted by med mal lawyer | Permalink Wednesday, January 16, 2008 4:49 PM

If you are a doctor, it is probably best not to "force" someone to have a "rectal exam" -- especially a little boy.

Jury's are notoriously homo-phobic...

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Posted by guest | Permalink Wednesday, January 16, 2008 4:52 PM

Why is it homophobic not to want a doctor's hand shoved up your ass? No one would fault a woman who didn't want a doctor to shove cold hands up her vigina (or her ass) without permission.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:52 PM

4:49: agreed

The homosexual agenda is out of control. They are trying to normalize aberrant behavior, using "science" and medicine.

The Illuminati is watching... and not pleased.

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Posted by FRAT STUD | Permalink Wednesday, January 16, 2008 4:53 PM

Guys in my high school used to flip out an assault doctors when they were injured and had to undergo forced rectal exams all the time. It was no big deal.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:53 PM

I would not be surprised to find out that this story is trumped-up and excessively embellished. Even though this sort of thing happens to rape victims quite often (being told they must submit to an invasive exam or they are not allowed to file a police report), if it ever happened to a MAN I imagine people would be all over it!

Oh wait. They are all over it. Yup.

(For the record, to the extent this dude's story is true, while he is a homophobic loser, he still has a right to bodily integrity, and it is every bit as wrong to forcibly examing him as it is to hold rape victims hostage. I just think it's interesting that only one of those gets this kind of outraged attention).

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Posted by 4:28 | Permalink Wednesday, January 16, 2008 4:55 PM

Of course it's his choice. I never said the doctors did the right thing.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:55 PM

So, I never read an answer to if Lat is gay or not. Not that I think this has anything to do with "gay".

I just think Lat is tres cute.

I'm not even offended that he punched me that time I had to give him a rectal exam.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:57 PM

4:49: agreed

The homosexual agenda is out of control. They are trying to normalize aberrant behavior, using "science" and medicine.

The Illuminati is watching... and not pleased.

Posted by: Anonymous | January 16, 2008 04:52 PM

__________________________________

Right. Or, perhaps this isn't about fear of a rectal exam as much as it is about confusion about the relationship between the treatment being offered and the injury suffered?

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Posted by guest | Permalink Wednesday, January 16, 2008 4:58 PM

4:55 - yes, Lat is gay.

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Posted by guest | Permalink Wednesday, January 16, 2008 4:59 PM

yeah, no one is outraged by "hold[ing] rape victims hostage." How come every time some man is raped, there is a woman there to say it happens to women all the time. Raping a heterosexual MAN is WAY WORSE--it is anal, for god's sake!

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Posted by guest | Permalink Wednesday, January 16, 2008 5:00 PM

447 didn't go to law school. You get the ass to sign a waiver that he refused treatment. Then you are golden. You can refuse treatment as long as you have the capacity. Guess they could argue that he got bonked on the head really hard and couldn't be trusted to make medical decisions.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:03 PM

No means no! I bet this "doctor" went to a TTT medical school.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:05 PM

yikes: my butt hole is tighter than a construction worker held down on an examining table, right now...

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Posted by guest | Permalink Wednesday, January 16, 2008 5:06 PM

Is there not a better way to check for a spinal cord injury?

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Posted by Manly woman | Permalink Wednesday, January 16, 2008 5:07 PM

"Why is it homophobic not to want a doctor's hand shoved up your ass? No one would fault a woman who didn't want a doctor to shove cold hands up her vigina (or her ass) without permission."

Is the question about wanting a hand shoved or wanting it shoved without permission? If the doc *forced* the dude to do this, that's obviously wrong. But I am consistently astounded at the reluctance of most men to get basic medical care because it involves some slight discomfort and, heaven forbid, involves having a doctor touch parts of the male body *that the gays touch!!!* We go through this shit every fucking year from 18 on. No, we're not "forced" to, but, you know, we don't want to get cancer and die, so the smart ones among us take responsibility for our health. Seriously, dudes, man up about it already.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:08 PM

I am gay, and this entire procedure, "rape" and discussion is most foul!

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Posted by guest | Permalink Wednesday, January 16, 2008 5:09 PM

lol @ 4:59. Yeah, you're right. Women should just suck it up like in the good old days, quit whining, and get back to the kitchen where they belong!!

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Posted by guest | Permalink Wednesday, January 16, 2008 5:10 PM

I want one of those exams.

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Posted by Anonymous | Permalink Wednesday, January 16, 2008 5:16 PM

Is there not a better way to check for a spinal cord injury?

Posted by: Anonymous | January 16, 2008 05:06 PM
__________________________________

Of course not, homophobe! Even asking such a question reveals your bigoted fairy terror and insensitivity to women rape victims!

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Posted by guest | Permalink Wednesday, January 16, 2008 5:20 PM

I've considered looking for a hot female doctor solely for the purpose of having her finger up my ass once a year, but I suspect the hot female doctors know that's what you're after when you pick them as your primary care physician.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:22 PM

my girlfriend likes me to stick a finger in rectum.. is she gay?

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Posted by guest | Permalink Wednesday, January 16, 2008 5:23 PM

Real life based on a Family Guy episode. Does this ring bells with anyone else?

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Posted by guest | Permalink Wednesday, January 16, 2008 5:24 PM

you think doctors WANT to stick a finger in everyone's butt? some do, strangely enough.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:25 PM

This entire post is an abomination...

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Posted by guest | Permalink Wednesday, January 16, 2008 5:27 PM

5:00, you're pretty much dead on -- this is standard procedure because the doctor is unable to determine if the patient has capacity. What do you think would have happened if the doctors hadn't performed the procedure and it was later determined that doing so could have prevented a subsequent spinal injury by offering treatment before an adequate determination of capacity could be made? it can take hours for a ct scan or mri.

on another note, why have we completely lost trust for the medical profession? why is it that fifteen minutes on webmd means we can all constantly claim that our doctors should have done something they didn't? why do plaintiffs typically equate bad outcomes with bad medical care and then call their lawyers?

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Posted by Anonymous3L, RN | Permalink Wednesday, January 16, 2008 5:28 PM

Rectal exams serve two purposes, generally: Checking a prostate and checking for bleeding in the bowel/rectum. There is a loss of rectal tone with low cervical spine injuries (I believe below c7, but I don't work in a trauma center, so I don't see this done much), but checking for bleeding is just as important.

As for his objection, I wonder how the attorney got him off of the assault charge - was it because of the head injury. If you have a head injury, one of the classic signs is aggressive behavior, sometimes wildly so. IF you have a head trauma patient that is thrashing around, they get sedated (and often intubated) so the exam can continue. This becomes an issue of implied consent because the reasonable assumption (until proven otherwise by CT, etc, which is done AFTER the physical exam) is that the head trauma patient is not fully capable of making a rational decision with a head injury serious enough to cause that aggressive behavior.

This should be a fairly easy case to dispose for the physician and hospital.

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Posted by HS Stud | Permalink Wednesday, January 16, 2008 5:28 PM

Guys in my highschool used to probe each other to check for spinal injuries all the time. It was no big deal.

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Posted by Odenkirk | Permalink Wednesday, January 16, 2008 5:28 PM

Sad songs are the key that get our tears out of eye jail.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:31 PM

Is there any justification because the guy may have not been thinking clearly, with his head injury and all?

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Posted by Frat Stud | Permalink Wednesday, January 16, 2008 5:36 PM

Guys in my high school used to fake spinal injuries just so they could go to the hospital and get probed all the time. It was no big deal

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Posted by anon | Permalink Wednesday, January 16, 2008 5:36 PM

this is really more about the fear of being PENETRATED (rather than being the PENETRATOR) than it is about being gay...hetero men are uncomfortable with gay sex not bc there is anything "gross" about it (after all, most of them want to do anal on their wives), but bc it requires that a man surrender his hierarchical position of privilege and be acted upon rather than active...it's all power dynamics....

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Posted by guest | Permalink Wednesday, January 16, 2008 5:37 PM

Not getting a rectal exam could have left an injury unrevealed... but HOLDING HIM DOWN WHILE HE STRUGGLED would not have had any effect on a spinal injury... what the piss?!

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Posted by guest | Permalink Wednesday, January 16, 2008 5:41 PM

5:36 is obviously a woman. No man wants anal with his wife -- anal is for whores and mistresses.

Most men are fine with laying back and being "acted upon" by wife, girlfriends, et. al. No heirarchical issues there...

So I guess that just leaves "gross" and "abomination" and "sin" as the main reasons against it.

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Posted by Anon | Permalink Wednesday, January 16, 2008 5:43 PM

I don't see how one could argue that he had capacity to form the intent necessary to commit an assault and also argue that he didn't have capacity to consent to the exam.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:43 PM

Does it matter that/if Brian Persaud (worker) is gay?!

How would you like to be nurse/orderly and get the command "hold him down, I have to inspect this guys ass"! Um...but it was his head?

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Posted by Anonymous | Permalink Wednesday, January 16, 2008 5:44 PM

As for his objection, I wonder how the attorney got him off of the assault charge -
Posted by: Anonymous3L, RN | January 16, 2008 05:28 PM
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Uhh . . . have you taken torts yet?

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Posted by Casanova | Permalink Wednesday, January 16, 2008 5:46 PM

5:41 is obviously a prude with a very unsatisfied wife. I'm sure the loves the same jumping-on-top-while-you-lay-there-motionless-for-2-minutes-until-you-nut routine night after night.

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Posted by guest | Permalink Wednesday, January 16, 2008 5:54 PM

"night after night" are you insane!? once a week, maybe...

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Posted by guest | Permalink Wednesday, January 16, 2008 5:57 PM

5:36, to these men, gayness and surrendering one's hierarchical position are the same thing. So saying that it's a fear of being penetrated is just a semantic difference.

Also, you're confusing anal sex with gay sex (i.e., "after all, most of them want to do anal on their wives"). Just becaue most straight men don't think anal sex is gross doesn't mean most men don't also think that gay sex is gross. Of course, most straight men also confuse the two (e.g., a man whose wife pegs him with a strap-on is still having straight sex).

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Posted by anon | Permalink Wednesday, January 16, 2008 6:00 PM

5:28: Are you a woman or a murse?

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Posted by guest | Permalink Wednesday, January 16, 2008 6:02 PM

People who use "abomination" and "sin" in their arguments aren't worth listening to.

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Posted by guest | Permalink Wednesday, January 16, 2008 6:12 PM

i don't see how you argue "implied consent" when the patient actually expressly refused consent. maybe he wasn't competent to make the decision as a result of the head injury, but that doesn't mean the the dr gets to overrule the guys objection.

no consent, no procedure.

this is a plaintiff's verdict.

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Posted by guest | Permalink Wednesday, January 16, 2008 7:06 PM

Plaintiff's verdict? I seriously doubt it. More likely, there will be a big fat settlement sometime either just before they start selecting a jury or just before the trial is about to start.

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Posted by blah-clerk | Permalink Wednesday, January 16, 2008 7:08 PM

Whenever I thought of this article during the last hour or so at work, all I can think of is a slightly modified rendition of "DON'T TAZE ME BRO!"

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Posted by guest | Permalink Wednesday, January 16, 2008 9:40 PM

As a bottom who loves getting his ass pounded, I can say that if I was at the ER for a head wound and someone tried to stick their finger up my ass without explaining why and getting my permission... I would slug the SOB, too!

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Posted by guest | Permalink Wednesday, January 16, 2008 10:36 PM

How is a rectal exam for a head injury a standard treatment? The guy was in a hospital, he could gotten an MRI, x-rays, or put on observation?

As a former nurse in the Army, I can definitely say this is not standard treatment even in a combat situation.

What happened to him is awful.

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Posted by anon | Permalink Wednesday, January 16, 2008 10:55 PM

the reason the docs do the rectal exam is to cover their asses in case something unforeseen happens to the patient and they sue for malpractice. they are afraid of scumbag lawyers, so they do possibly unnecessary procedures on EVERY trauma patient. it is TTT lawyers fault.

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Posted by VMonkey | Permalink Thursday, January 17, 2008 7:36 AM

Chuck Norris could have escaped the anal exam. He would have given the finger an anal exam.

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Posted by TTT_JD, T10_LL.M | Permalink Thursday, January 17, 2008 8:19 AM

hmmm...when was it socially ok to hold somebody down and force something in to that person's ass.....oh I remember! When I was in PRISON!

Lots of things go in to asses in prison.

Remember, VMonkey? You were there.

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Posted by Can't believe no one's said it yet | Permalink Thursday, January 17, 2008 8:36 AM

Rectum? Damn near killed 'em!

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Posted by guest | Permalink Thursday, January 17, 2008 10:32 AM

Lat would have taken it like a champ! His anus knows no satisfaction!

Asian man love, baby!

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Posted by Anonymous3L, RN | Permalink Thursday, January 17, 2008 7:32 PM

As for his objection, I wonder how the attorney got him off of the assault charge -
Posted by: Anonymous3L, RN | January 16, 2008 05:28 PM
__________________________________

Uhh . . . have you taken torts yet?

Uhhhh, that would be criminal, not torts. And the question was rhetorical, relating to the argument that if he is not fully oriented and thus not responsible for his actions, which would get him out of the assault charges. But then he would not be oriented enough to have refused to procedure and thus implied consent would take over.

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Posted by Anonymous3L, RN | Permalink Thursday, January 17, 2008 8:33 PM

i don't see how you argue "implied consent" when the patient actually expressly refused consent. maybe he wasn't competent to make the decision as a result of the head injury, but that doesn't mean the the dr gets to overrule the guys objection. - from 6:12


If he is not competent to make the decision, he can't "expressly refuse" anything. There are numerous occasions where I have had to restrain people that were combative and yelled "no, no, no" the whole time. There most definitely can be implied consent in this situation.

Even if they can prove he was competent, this is still a long way from a plaintiff verdict.

Also, to the army nurse, you must not work ER. You would know an MRI isn't done in an emergent head injury (a CT scan, however, is the standard of care)and I could line up several experts that would testify this is standard of care (and probably not have to pay them).

With the hard-ass Med Mal defense attorney's I know, there would be no settlement.

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Posted by guest | Permalink Thursday, January 17, 2008 10:57 PM

Anonymous3L, you're retarded. Assault is both a crime and a tort.

Also, the mental capacity required to give informed consent is different than that necessary for criminal liability (e.g., drunkenness).

You will never pass the bar.

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Posted by guest | Permalink Thursday, January 17, 2008 10:58 PM

Anonymous3L, you're retarded. Assault is both a crime and a tort.

Also, the mental capacity required to give informed consent is different than that necessary for criminal liability (e.g., drunkenness).

You will never pass the bar.

Further, the test was to check for spinal chord injury. This is a nerve and whould not show up on a CT scan.

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Posted by Conrad | Permalink Tuesday, February 12, 2008 3:38 AM

the guy was awake enough to be taked to the police station so the hospital violated his rights totally. The hospital should be shut down and the doctors envolved should loose their licenses.

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