Assault charge may have fueled lawsuit
Assault charge may have fueled lawsuit
The criminal charge filed against a patient who was forced to undergo a rectal exam may have been one factor that led to a civil lawsuit against the hospital, say legal observers.
Brian Persaud of Brooklyn, NY, was arrested and charged with assault for striking a physician while refusing a rectal exam at New York-Presbyterian Hospital/Weill Cornell Medical Center in New York City. The criminal charge was dropped, but then Persaud sued the hospital for forcing the exam on him, according to Persaud's attorney, Gerard M. Marrone, JD, of New York City.
Vicki Rackner, MD, a surgeon in Mercer Island, WA, who has been a consultant in many malpractice cases, says the hospital's decision to pursue a criminal charge is curious in light of its position that the patient was incompetent to refuse treatment.
"If he was not competent to decide what happens to his body, then that implies that he was not competent to manage his anger and his emotions and his feelings," she says. "They can't have it both ways. Either he was competent during this episode or he wasn't."
Rackner suggests that having the patient arrested and booked in his hospital gown may have been a humiliating experience that prompted him to sue the hospital. Even though she is sympathetic to the clinicians who must deal with difficult patients and make quick decisions, Rackner says the criminal charge is hard to justify in these circumstances.
Similar concerns come from William Weiner, JD, a partner with the law firm Fox Rothschild's Health Law Practice Group in Warrington, PA. He points out that health care providers don't pursue criminal charges against every patient who strikes a caregiver because they understand some simply are not responsible for their actions.
Weiner also reminds risk managers that there is an opportunity to smooth things over after such an incident. The physician can go to the patient afterward, when the patient is stable and everything is calm, to explain what happened and why.
"You can go and tell him, 'I know that was scary and you didn't want us to do that, but now that everything is fine, let me explain what was going on,'" he says. "That could go a long way toward calming a patient who otherwise might just get more and more angry as they think about it."
The criminal charge filed against a patient who was forced to undergo a rectal exam may have been one factor that led to a civil lawsuit against the hospital, say legal observers.Subscribe Now for Access
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