A defense verdict following a two-week jury trial has far from settled the debate over whether emergency room staff at a New York hospital assaulted a patient by forcing him to have a rectal examination.

The Manhattan Supreme Court jury reached its verdict after deliberating for only a few minutes, inflicting a crushing defeat on Brian Persaud, a construction worker who alleged New York-Presbyterian Hospital trampled over his right as a patient to decline medical treatment. He was admitted to the emergency room for treatment of a head injury in May 2003.

The hospital argued it followed medical protocol in attempting to do the rectal exam and then sedating Persaud and inserting a breathing tube when he vigorously objected to it. Healthcare providers cannot make treatment decisions for a competent patient without the patient's consent, but the hospital said Persaud was not competent because of his head trauma.

“There is absolutely no question that this was a frivolous lawsuit with absolutely no foundation in fact or substance,” a posting on the New York Times website said. The posting, apparently written by a juror, also described Persaud as “deeply troubled” and having “no credibility.”

Another Times reader was more sympathetic to the plaintiff. “Frankly, from a medical perspective, a rectal exam was not called for, and [was] as likely to cause injury given the circumstances as detect it,” the reader said.

Persaud, a native of Guyana, sued New York-Presbyterian in 2004 for assault and battery, unlawful confinement and negligence. A judge in December found the complaint “amply supported” a claim for punitive damages and Persaud's attorney intends to appeal the jury's verdict.

“I feel that a great injustice has been done not only to Brian but to any person walking into an emergency room who declines a procedure,” Gerard M. Marrone of Rego Park, N.Y., tells On Point.

Persaud was injured at a construction site when a wooden beam fell on his head. At the hospital, he received eight stitches in the head wound and then was told he needed an immediate rectal exam -– abnormal sphincter tone would indicate a spinal cord injury.

One of the ER staff, Dr. Susan Trocciola, testified she put a finger in his rectal area, but never actually performed the exam. After Persaud's sedation wore off, he was arrested and taken — still in his hospital gown -- to be booked on a misdemeanor assault charge for striking a doctor.

Even if the rectal exam was not performed, Marrone argued that the jury should find the hospital liable for the sedation and intubation of his client. “They could have given Brian a whole host of other drugs to sedate him which would not have required Brian to be intubated,” he says.

But the juror who posted to the Times website said the case was “bogus” because “No rectal exam was performed.” The posting also dismissed the testimony of Persaud's two expert witnesses –- a neurologist and a psychologist -- simply because they were “doctors-for-hire.”

Expert witnesses, of course, are always paid for their services, as was the expert who testified for the hospital. The plaintiff's neurologist, Dr. Irving Friedman, concluded that neither the rectal exam nor the intubation was medically necessary and, referring to Persaud's arrest, suggested the ER physicians “should also have been arrested for assaulting Mr. Persaud, i.e., doing a rectal exam against his clear instructions.”

“If they just respected his wishes, there never would have been a case,” Marrone says.

By Matthew Heller
4/27/08