It was hard to miss the stories this week on a lawsuit about a forced rectal exam in an emergency room. The blogospheric responses to it were, in a word, extraordinary.
The story itself is certainly odd, but not complex: Brian Persaud walks into a New York hospital with a head injury over the brow that needs eight stitches, and the ER staff then forces him to have a rectal exam against his will. Words are exchanged, he physically lashes out, he’s sedated, apparently placed on a ventilator (?) and arrested. Charges were dismissed, but he sues the hospital, and in the process raises issues of ethics, informed consent, medical necessity and assault.
Now here’s the striking part, and it jumped out at me when I first saw the story at Kevin, M.D. Kevin’s easy to pick on because he has a great blog even though I often disagree with him, so when I challenge his opinion as being out to lunch, it comes with the caveat that I still routinely check his site for stories and opinions.
So here’s the part that jumped at me: He immediately called it a “frivolous lawsuit.” And not just him, but many, many others in the comments couldn’t wait to rush to judgment. Based solely on an article that first appeared in a NY Times blog.
The patient’s ability to give consent for the procedure is, of course, dependent on the actual facts. And given the commotion this must have caused — the man was, after all, restrained and arrested — you know there are many witnesses to the man’s ability to make rational consent decisions. But have those that leaped to the conclusion that the case is frivolous actually seen or heard any witnesses? Well, of course not. The opinion offered on the merits has nothing to do with the actual facts, but on the political bent of the people offering up their opinions. (Volokh has 114 comments already.)
This reminds me, to some degree, of the criminal trial surrounding New York subway gunman Bernhard Goetz when he shot four teens on a subway in 1984 that he said were threatening him. It reminds me of that because, when the trial was held, there were competing demonstrators outside the court. One side wanted to crucify him as a racist and the other side wanted to hail him as a hero. And they all had one thing in common: Not a single one of them was actually in the subway to see what happened, nor had the evidence even been fully presented in court.
The rectal exam case makes for an interesting legal Rorschach test, just as the Goetz case had.