In the blog entry below this one, I touched on an incident that occurred in New Mexico which has set a fire in the blogosphere. That entry drew a lot of criticism from folks who want the involved officers, and their little dog too, to be hung out to dry because they took a guy to the hospital for a rectal exam because they thought he had hidden drugs up his butt. The examination found no drugs. The examination went to an extraordinary degree: multiple digital anal probes, multiple enemas, and finally, a colonoscopy, all without the suspect’s consent.
A disproportionate number of the critics were first time posters here, generally an indication that they read somewhere else that I disagreed with them, and just had to fight. No comments on that last blog entry here have been deleted at this writing; I encourage debate here, unlike the anti-gun blogs. I do, however, appreciate it if those with opposing views at least know what they’re talking about.
Let me address some of the issues.
“They didn’t find drugs, so they were wrong. Punish them.” Sorry, folks, that’s not how it works. To make a long story short, “You don’t have to be right, you have to be REASONABLE.” Do a Google search for Graham v. Connor. The suspect, with a long record of drug arrests, was known to one officer to have stuffed drugs up his butt before; the drug-sniffing dog alerted to the driver’s seat where he had been sitting; and, what first alerted the officers to that area of his body, he was visibly clenching his buttocks tight.”
“They based it on an anonymous tip! Punish them!” No. ONE basis of multiple bases was that another officer said the suspect was known to put drugs up his butt. The fact that the officer giving that information was not named in the warrant does not make it an “anonymous tip,” and only someone with a child-like grasp of the criminal justice system would think so. It’s more like “transferred probable cause.”
“He was anally raped by the authorities! Punish them!” Uh, no. Any cop with experience and good training, like any experienced medical professional who works the emergency room, knows of cases where drug suspects have hidden the dope in their body cavities and died from that act. It normally comes from swallowing a baggie of heroin or a balloon full of cocaine, but anally-inserted drugs can act even faster than those taken orally. If these officers AND medicos had failed to investigate this and the man died, the same anti-authoritarians would be calling for all their heads for letting him die untreated and unexamined. The cops followed the protocol: when there’s a medical issue, turn it over to the medical people. No cop held a gun to the head of the physician who ordered the more extensive and invasive testing. When digital examination and X-ray were done, don’t you think there was SOMETHING that made the medical professionals involved continue the testing? Some considerable time elapsed between the arrest and the colonoscopy: by that time, any physician would have to consider the possibility that the drugs had already been absorbed, and might reasonably do the colonoscopy to detect other signs of that having happened.
I have to note that, to my knowledge, none of the bloggers who fueled the flames for outraging the public even considered any of this when they made their initial inflammatory posts.
But one other hospital refused to do it! That’s the way it looks. However, I also know of one hospital whose policy is that if they have reason to believe that the conscious adult patient has swallowed poison and he refuses to be examined and treated, personnel are under orders not to examine or treat. Was that policy in place at the first hospital? I don’t know. I do think that in any hospital with that policy, Risk Management needs to cross-pollinate with the Ethics Committee.
But the warrant was from another jurisdiction, and had timed out. If there is good reason to believe there may be life-threatening substances inside the patient’s body, exigent circumstances (look it up) have kicked in. That triggers the doctrine of competing harms/doctrine of necessity/doctrine of two evils. (Look those up, too.) The importance of the warrant now pales.
We all need to apply common sense. One commentator in the last blog entry noted the striking comparisons of this case to Florida v. Zimmerman. In many respects, I have to concur. Each trope came first from plaintiff’s counsel, unanswered by the defense (and the involved authorities) until much later. In this case, the defense (the police and the medicos) have not yet put their defense forward. We’ve seen their warrant from before the fact of the examination, but not their reasoning for what they did next. Doctors are constantly under siege from bogus malpractice complaints, cops likewise with false excessive force allegations, and lawyers tell their defendant clients “We won’t try the case in the press.” Thus, only one side gets heard.
It’s laughable that the cops did that for the suspect’s safety, according to one critic. And, cops have no responsibility for our safety. BS and more BS. A “special relationship” existed between the officers and the suspect the moment the investigative detention began. Once they came to believe he may have stuffed enough drugs up his butt to kill him, they had both legal and ethical duties to seek further examination. And if, when the docs caught the ball and did the examinations, they didn’t see some reason to continue looking, why on earth would they have done so? Cui bono? What would the docs who did the exams have possibly had to gain at that point, if those medical professionals DIDN’T have reason to think it was necessary?
The medical records and testimony will come out at trial, if not before. Don’t judge based on one side, get outraged at what that one side told you, and then feel a need to defend it so you won’t be embarrassed by being on the wrong side when the truth comes out.
Let’s wait to hear from both sides.
Frank, I fully understand what you and some who think like you worry about. I understand that if you really believe “there’s always ‘some’ reason” you might be suffering from a tinfoil deficiency.
And you and some others have made in clear to anyone reading this that you don’t really grasp the duties emergency services personnel have, in regard to those in their custody.
Invasive medical procedures for the purpose of finding drugs goes way over the line. It may be legal, but that doesn’t make it right. It’s also unnecessary — the guy is under arrest, leave him alone with a bed pan and let nature take its course. Some police departments have even devised special lavatories for the sole purpose of collecting “evidence.”
“you don’t really grasp the duties emergency services personnel have, in regard to those in their custody”
Would you be so kind as to point to a prior example or two of an analogous exercise of this “duty”?
You have to be joking.
Perhaps this is parody?
Or devil’s advocate?
Maybe a “know your enemy” breakdown of what the Statist’s logic process looks like?
Because no sane American who believes in the Constitution and SWORE AN OATH to uphold it could ever defend these actions.
But on the very small chance you’re serious, sir, may your chains rest lightly…and posterity forget you were my countryman.
I didn’t immigrate from 10,000 miles away to escape a brutal regime, come to the “land of the free”–and hear THIS defended by an American??
Michael Stuart, you are welcome here with your first-time post. It would have gone better if you had actually read the blog post(s) you’re referring to, and the detailed explanations within the commentaries. I guess listening to both sides is not a custom where you came from. Glad you escaped your “brutal regime,” where presumably the accused gets no chance to defend and explain; you should have left that behind when you came to a country where the justice system listens to both sides of the story.
Ben in Massachusetts, you and your first time post are welcome, but you’re off the mark. You say “leave him alone with a bedpan and let nature take its course.” If a baggie of toxic drugs has ruptured inside him, the course that nature will take will be to leave him dead on the floor next to his bedpan. Emergency services personnel understand that. Denizens of cop-hater blogs apparently do not.
Actually reading the commentary to which you respond, will help you understand.
Frank, you keep repeating yourself, and ignoring what others say. It has already been explained that anal inspections for contraband are an everyday occurrence in corrections/criminal justice work, and that ER physicians will take escalating measures if necessary if they have reason to believe the patient has put something inside himself that’s likely to kill him.
“ER physicians will take escalating measures if necessary if they have reason to believe the patient has put something inside himself that’s likely to kill him”
You keep repeating yourself, but haven’t offered an example where a competent, conscious adult is given *surgery* against his will by the state. If this were truly a “duty”, we should be swimming in such cases.
Mas,
“You and others have made it clear that if Eckert DID have a ruptured bag of dangerous drugs inside him, you’d let him die in the name of your principles. Emergency personnel don’t have that option, and you and those who agree with you are stubbornly refusing to recognize that irrefutable fact.”
That is not actually an irrefutable fact. If emergency personnel come across someone who needs treatment, and the individual is unable to provide consent for some reason (such as being unconscious), then they are under an obligation to do whatever they can to assist the individual. However, if that person is conscious and able to provide consent, then that individual has the right to refuse treatment.
In this case, there is every bit of evidence to suggest that Eckert was able to provide consent to any seemingly necessary lifesaving procedures, and he refused the treatment. The only point at which he would have lost the ability to consent would have been after a non-consensual procedure was performed (the application of anesthesia for the final procedure).
As the University of Illinois at Chicago School of Medicine explains: “This entitlement to carry out emergency treatment prevails only so long as the patient is unable to participate meaningfully in decision-making about his or her condition. When, an adult regains consciousness he or she should be respected in his or her decision-making.” Source: http://www.uic.edu/depts/mcam/ethics/ic.htm
Unless you have evidence that Eckert was of diminished capacity, or legal precedent that indicates that once Eckert was in custody he was considered unable to provide or refuse consent, then Eckert (like all adults) has the presumption of the capacity for decision-making about his own treatment. His right to refuse care at that point is absolute, and absolves the medical practitioners of any responsibility for his care.
Observ and Frank, I don’t work in the medical malpractice field and have not studied the caselaw there. You’re welcome to share what you might have in that regard.
However, common sense tells us that “the doctor owes me money because he saved my life when I didn’t care if I died” is not going to be a common theme, nor a likely successful theory of the case, in tort law.
By your standard, it would be cool for the cop trying to talk the jumper in from the ledge on the 30th floor to say, “Jump, then, and stop wasting my time.”
Mas, your final use of hypotheticals and loose analogies tells me that you don’t have any evidence to believe that a duty such as the one you posited and labeled “irrefutable fact”. Thank you, this is progress.
Now working backward, if you still believe a colonoscopy surgery is not within the scope of a search warrant, and yet the police officer knew it was going to be performed (and he wrote he did, hours ahead), might he have been negligent in permitting it (or worse, abetting it)?
If that’s your take, Frank, you’re misinterpreting badly. Anal checks are routine. Anything invasive, cops turn over to docs. Docs take it from there. That simple.
Mas,
If you don’t have experience with medical ethics and law, then why are you making unequivocal statements about it? (Specifically, calling a duty for emergency personnel to save lives an “irrefutable fact”.) The unequivocal fact is that in all 50 states, a competent and informed patient has the right to refuse any and all medical care, and doctors are legally, morally, and ethically bound to respect that.
You really don’t have much of a leg to stand on here. With each successive test, the basis for the continued search became less and less reasonable. When you combine that with the minimal basis for the initial search (an uncertified dog’s alert, an allegation from an unnamed police officer, and the observation of clenched buttocks), there is no rational way that you can justify everything that was done as a “reasonable” search, even with the warrant. When you combine that with the requirements of medical ethics, the endpoint of their investigation (the colonoscopy) was completely unjustified.
You’re right that a cop doesn’t have to be right in order for a search to be justified. They only have to be reasonable. However, that doesn’t mean that their actions here were reasonable.
The initial x-ray and cavity search was reasonable (assuming that the statements in the affidavit were accurate). Even the enema could be reasonable if we assume those facts. However, with each successive search, it becomes less and less reasonable. Even if every statement in the affidavit was 100% correct, it would not justify the colonoscopy, and none of the searches performed before the colonoscopy provided any additional evidence that provided additional justification.
Just because the search may have started out reasonable doesn’t mean that it was reasonable from end-to-end. That is what I think you are completely overlooking here.
Observ, medical ethics is not my field. Police ethics IS encompassed in my field. Police ethics state that medically invasive physical searches be performed by medical professionals. The cops followed this and turned the patient over to the docs.
Once the docs took over, neither you nor I know “the totality of the circumstances” as they perceived them…the details of what they saw in the early stages as their examination escalated, what statements or behavior they observed on the part of the patient which might or might not have led them to believe that they were or were not dealing with a patient competent to make his own decisions about things that might be immediately life-threatening.
Observ, please share with us YOUR background in medically-related law and medical ethics.
I have no way of knowing, Observ, whether you read both my blog entries on this topic or my responses in the long commentaries which followed each. Please review those before your next response, which I eagerly await.
Mas,
My background in medical law or ethics is irrelevant, as I have provided you a clear source that is authoritative (i.e. what a medical school teaches on the subject). I can provide more sources, if you wish. I would also appreciate any source you can present that might seem contrary.
You can’t simply say “police ethics say to hand it over to medical professionals” and use that to wash your hands of the matter. The police brought Eckert to the hospital and insisted upon a search of him, under the basis of the search warrant. We know that the first medical professional asked to perform the procedure refused on the basis of medical ethics. Because of the warrant, we know that Eckert did not initially consent to the search (else a warrant would have been unnecessary). If the police are the ones who provided the consent to the procedure, then the police are ultimately responsible for the excessive actions.
The police are the ones who insisted upon the search, and so they have a large measure of responsibility for the overreach involved in the search. The warrant gave then the authority to compel an initial search. It did not, however, render Eckert incompetent to provide consent (and therefore also refuse consent) for any actions taken beyond the purpose of that search. Eckert asserts that he never consented to the procedures, and in the absence of evidence showing he did consent, it is only proper to accept his assertion as fact. (That’s why hospitals have you sign so many consent and release forms, to cover them in a situation like this.) A doctor cannot, on their own authority, simply rule that a person is not competent to make their own decisions and then act unilaterally.
This creates a clear quandry. If Eckert never consented to the invasive procedures, then either they were performed without consent (which is a clear violation of medical ethics, and would constitute assault and rape, which the officers did nothing to stop), or they were performed on the basis of the police officers’ consent (based upon the warrant). If the former, then the officers should have stopped the procedure once it progressed beyond the limits of the warrant. If the latter, then there are significant 4th Amendment concerns involved, as you are now asserting that a warrant with flimsy, problematic evidence provides a reasonable basis for compelling intrusive medical procedures.
Finally, if you look back, you will see that I was the first commenter on this post, as well as one of the first commenters on your your previous post. I have been following this issue from a variety of sources (on both sides) for a while, and I have repeatedly tried to go back to primary sources for my information as much as possible.
Observ, if you think background in medical ethics is irrelevant, one wonders why you brought it up in the first place.
In that first comment of yours to which you just referred, you wrote, “Exigent circumstances require more than simply “’we thought he might be in danger’. They require specific facts supporting the belief to make that belief reasonable. Even if you could argue that the initial examination(s) were reasonable, the continued escalation in the absence of additional evidence was not.”
You appear to concede there that the original (routine) anal examination was justified under probable cause. If so, we agree.
To determine the objective reasonableness of the continued examination by the doctors, the triers of the facts will need to know in great detail what their thought processes were and what their frame of references were. Objective reasonableness is determined by the reasonable man standard: what would a reasonable and prudent person have done, in the same situation, knowing what the defendant (here, the docs and the cops) knew? For professionals, that’s applied within the professional standards of knowledge, training and experience.
The point I’ve been trying to make, through two blog posts and a couple hundred plus discussion comments, is that none of us can judge these people’s actions until we know in detail what they perceived during the escalating examination, and why they chose to continue as they did.
Those details have not yet come to light.
If you have studied this matter as you say you have, you must be well aware of the very real danger of death from drugs hidden inside the body. I have asked repeatedly here why ELSE the doctors would have gone this far. The answers I’ve received have been VERY scant and very weak.
What, Observ, is your take on that?
Mas,
I questioned your background in medical ethics because you made an assertion without any citation, making appear to come from your own experience rather than an authoritative source. I, on the other hand, provided you with a citation to an authoritative source. As a result,
Even though those details have not come to light, we can make certain reasonable assumptions (such as applying Occam’s Razor) based on the evidence that we have until such time as we have additional evidence.
For example, Eckert clearly asserts that he did not consent to the medical procedures. That is a fact. We also have clear standards about the role of consent in medical ethics (including the presumption that a conscious person has the right to withhold consent). That is also a fact. In the absence of any evidence to show that Eckert was of diminished capacity, it is more reasonable to assume that the doctors violated medical ethics than it is to assume that they followed proper procedures to have him declared incompetent to refuse consent.
On that basis alone, the risk of death from drugs hidden inside the body becomes irrelevant. Why? Because the police do not have the authority to compel medical procedures for the purpose of saving someone’s life if that person doesn’t consent. Unless you are claiming that the warrant gave them that authority (which would be outside its scope – it’s purpose was to gather evidence, not to compel a lifesaving procedure), they completely lacked that authority. (If you are claiming that, then I would be interested in hearing your legal basis for that, with citations.) Similarly, unless the proper procedures were followed for Eckert to be declared incompetent (at which point, the normal procedure would be to contact next-of-kin, if possible), the doctors similarly lacked that authority.
As long as Eckert was mentally competent, he had the right to withhold consent. If he was unaware of the risk of death caused by drugs hidden inside the body, then the doctors’ responsibility was to inform him of the risks so he could make an informed decision regarding consent. Beyond that, without his consent, their responsibility and authority ended.
Based on the evidence that I have seen before, what I think is most likely to have happened is that this is a case of normal human beings’ tendency to submit to someone that they see as an authority figure (specifically the police, with their authority being apparently amplified because of the warrant). That’s just human nature. It’s the same reason that most people will consent to a search of their car, even if they know that they have contraband in it. From the facts that we have, it’s pretty clear that the police sincerely believed that he was hiding drugs. (Whether that belief was actually reasonable is a valid question, but I will submit that if the facts are as they claimed in the affidavit, then it could have been reasonable.) How they expressed that belief to the doctors combined with their perceived authority and the authority provided by the warrant would have a strong probability of transferring that assumption to the doctors, and cause the doctors of going much farther than they otherwise would have gone in trying to find the drugs that we now know were never there in the first place.
After the initial examination, no one stopped to check the assumptions that they made, and see if there were other reasonable or plausible interpretations. That continued with each round of tests, until they went beyond what would have been reasonable if they had stepped back. We’ve all seen examples in every day life of people not checking their assumptions. It’s another part of human nature that we don’t like to admit that we made a mistake or jumped to a conclusion. That introduces a confirmation bias, because people will often see what they expected to see, regardless of what else is actually there.
Now, I freely admit that I could be wrong in this interpretation, and I earnestly try to constantly reevaluate everything (down to my basic assumptions) as I get new evidence. For example, in the Zimmerman/Martin case, I repeatedly said that based on the evidence we had, it appeared to be a case of self-defense, but that if new evidence came out it was entirely possible that it would turn out to be different.
But as things stand now, unless some extraordinary evidence comes out to show that Eckert was unable to provide informed consent to the colonoscopy, combined with evidence that the colonoscopy was medically warranted, I find this case to be extremely troublesome, because the actions of the police go so far beyond the limits of authority that any official should have in a free society. If, as I believe based on the evidence so far, the police and the doctors refused to reevaluate their assumptions as they got new evidence from the repeated exams, then they need to pay a significant price for their failure to do so, if only to reinforce the standards that they should be following. With great power comes great responsibility, and a failure to exercise good judgement requires that they be held accountable.
Again, if additional evidence comes out that would change this analysis, I am more than happy to reevaluate it. But until then, in order to discuss the underlying principles, I don’t feel that any of the assumptions I have made above (and attempted to outline for you) are unreasonable.
Observ, let’s boil down the disagreements.
DOCS AND POLICE AUTHORITY. I respectfully disagree with your assumption that the doctors felt compelled by the presence of police authority. The docs were in their own environment, where docs rule. I simply don’t see them throwing their careers away by performing an unnecessary colonoscopy to serve a warrant, particularly since their earlier examinations had essentially served the purpose of that warrant already.
CORRECTNESS OF PERFORMING PROCEDURE WITHOUT CONSENT. You just wrote, “the risk of death from drugs hidden inside the body becomes irrelevant.” Your position ignores a long-standing principle of emergency life-saving response, the common law principle of Doctrine of Competing Harms, also known as Doctrine of Necessity and Doctrine of Two Evils. If there is reason to believe there is a life-threatening emergency — and I think there’s a strong case for that here — one is held harmless for breaking the rules if the exigent circumstance is such that following the rules would cause more human injury than breaking them.
Like you, Observ, I am interested to see what investigation and trial will show. Unlike you, I am withholding judgment until both those sides have come to light.
Mas, you wrote:
“Your position ignores a long-standing principle of emergency life-saving response, the common law principle of Doctrine of Competing Harms, also known as Doctrine of Necessity and Doctrine of Two Evils. If there is reason to believe there is a life-threatening emergency — and I think there’s a strong case for that here — one is held harmless for breaking the rules if the exigent circumstance is such that following the rules would cause more human injury than breaking them.”
Unfortunately, that does not apply in this case. There is no evidence to support the assertion that there was a life-threatening emergency – the two manual anal probes, three enemas, and two x-rays found nothing.
From a medical ethics perspective, consent is the relevant issue. Mr. Eckert was able to refuse consent, and there has been no indication that he was evaluated by a psychiatrist and deemed incapable of making an informed decision. There is a significant body of case law about this.
Consent is not the only problem. One article points out that “There are major concerns about the way the search warrant was carried out. Kennedy argues that the search warrant was overly broad and lacked probable cause. But beyond that, the warrant was only valid in Luna County, where Deming is located. The Gila Regional Medical Center is in Grant County. That means all of the medical procedures were performed illegally and the doctors who performed the procedures did so with no legal basis and no consent from the patient.
In addition, even if the search warrant was executed in the correct New Mexico county, the warrant expired at 10 p.m. Medical records show the prepping for the colonoscopy started at 1 a.m. the following day, three hours after the warrant expired.” (http://www.kob.com/article/stories/S3209305.shtml?cat=500#.UqI0FUOp2Av ) Note that the entire filing can be read there.
While I salute your willingness to belay judgement until both sides have been heard, absent any extraordinary revelations from the defendants, I predict Mr. Eckert will someday receive a large amount of money.
Halchymis, you and your first post here are welcome. I think if you review the two blog entries and the hundreds of comments combined in the two, all those points have been addressed, including the fact that the details of why the docs proceeded as they did have not yet been divulged.
Mas,
Thank you for the welcome. I did review the blog entries and comments. I addressed the points you presented in your post immediately preceeding mine, specifically the paragraph titled “CORRECTNESS OF PERFORMING PROCEDURE WITHOUT CONSENT.” and the misapplication of the Doctrine of Competing Harms to this case. Forgive me, but I cannot find any previous comments where the points I raised about that misapplication had already been covered. To whit, there was no evidence of imminent harm, so there was no competition. Therefore, they needed his consent.
You raise a good question, “Why would the doctor do it?” It may simply be just one more example of (supposedly) smart people doing really stupid things. We will have to wait until their version becomes public, if ever.
Regarding “the fact that the details of why the docs proceeded as they did have not yet been divulged”, the reason is plain. This is a lawsuit that will probably result in a substantial judgement against them if it goes to a jury. The hospital, it’s attorneys, and the doctors’ attorneys have undoubtedly told everyone to keep their mouths shut until they get deposed.
We may never hear both sides – the hospital and doctors may simply hand over a big bag of cash, a non-disclosure agreement is signed, and that’s the end of it.
Hal, defense attorneys both criminal and civil generally tell their defendants to shut up, whether they’re in the right or the wrong. The mantra is, “we don’t try our cases in the press.”
Cases are often settled, not because the defendant is wrong, but because bean counters feel the settlement is cheaper than cost of trial and bad publicity. If that does happen, I’m afraid the truth of the matter will not be well served. I hope the details see the light of day, wherever the chips may fall.
And, if the docs can articulate a reasonable fear for this man’s life, it most certainly will be a doctrine of competing harms issue.
Mas, we are in agreement about not trying cases in the press. We also agree that the details should “see the light of day, whereever the chips may fall.”
However, with regard to doctrine of competing harms, aka doctrine of necessity, this most certainly will not be an issue. As I pointed out, there was no evidence that the man’s life was in danger. And even if they could articulate some reasonable fear (highly unlikely, absent supporting evidence) they still could not proceed without consent. Again, as mentioned previously, Eckert was conscious, communicated that he did not consent, and was not determined to be of reduced mental capacity. The right to refuse medical treatment, even when such refusal would lead to imminent death, is a long established legal precedent in place for over 100 years. For example, see Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) – “In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v. Davis, 224 Ill. 300; Mohr v. Williams, 95 Minn. 261.)”
Also see Shine v. Vega, 429 Mass. 456, 709 N.E.2d 58 (Mass. 1999) – “Consistent with other courts that have considered the issue, we recognize that the emergency-treatment exception cannot entirely subsume a patient’s fundamental right to refuse medical treatment. The privilege does not and cannot override the refusal of treatment by a patient who is capable of providing consent. If the patient is competent, an emergency physician must obtain her consent before providing treatment, even if the physician is persuaded that, without the treatment, the patient’s life is threatened. Norwood Hosp. v. Munoz, supra at 130-131; Miller v. Rhode Island Hosp., 625 A.2d 778, 784 (R.I. 1993) (“physician must respect the refusal of treatment by a patient who is capable of providing consent, even in an emergency”) . . .a competent patient’s refusal to consent to medical treatment cannot be overridden whenever the patient faces a life-threatening situation.”
It would be a display of gross incompetence should defense counsel attempt to argue necessity over consent. Precedent weighs against the doctors and hospital. As you have said, more than once, “Look it up.”
Hal, your contention that there was no evidence the man’s life was in danger is simply inconsistent with the facts as they were known at the time the exam began.
I am looking forward to reviewing all your cites when I have time. I stopped after the first one, for this reason:
The first I reviewed, Miller V. Rhode Island, was the RI Supreme Court case in which that Court reviewed the appeal of a hospital which had lost a $10,000 judgment in Superior Court after docs performed surgery on the patient in question against his wishes. The case you cite found for the defendant hospital, and ends with “…the defendant’s appeal is sustained. The judgment of the Superior Court is vacated. The papers of this case are remanded to the Superior Court for a new trial consistent with this opinion.”
That state Supreme Court opinion also states, “The doctrine of informed consent must, at times, yield to the practical considerations of emergency medical treatment.”
Since that case does not seem to say what you think it says, I thought I’d give you time to review your citations in more depth and then get back to us, to prevent time being wasted by all concerned.
Mas, if I could choose the people by my side during adversity, one of them would be you. I applaud your tenacity.
One cannot justify a whole series of actions, each providing more information, on the “facts as they were known at the time the exam began” especially since there were no facts, merely the suspicions of the officers. As the exam progressed, the odds of finding evidence of danger became progressively less likely. The colonoscopy would be a definite breaking point, if not the x-rays. The colonoscopy was done without evidence of imminent harm, and without consent.
It is interesting that you chose the Miller case, which was a cite within the case I quoted. As you know, courts often quote previous cases which support their current argument, regardless of the outcome of that previous case. It is also interesting how you missed the fact that the Miller case concerned a man who was stinking drunk – the real issue was whether his intoxication rendered him incompetent. The Court wrote, “the trial court erred in ruling . . . that intoxication does not abrogate the right to informed consent.” As you admonished, the “case does not seem to say what you think it says.” Leaving out such an important detail might lead some to think your trying to BS the readers here. All I will say is, you should follow your own advice – “review your citations in more depth . . . to prevent time being wasted by all concerned.”
Hal, I’ve had a bit more time to delve into the citations you claim support your position. In the hundred year old Scholendorff case, a patient had agreed to exploratory work under anesthesia to determine if a tumor was malignant, but not to its removal. Finding a malignant tumor, the docs removed it anyway. The NY Court of Appeals found it constituted medical battery. Interestingly, the plaintiff had sued the hospital and not the doctor(s), and the court found the non-profit hospital could not be held liable, referencing the charitable immunity principle. It would be interesting to see how today’s courts would look at an allegation that the plaintiff was “harmed” by doctors removing a life-threatening cancer.
In the Rhode Island State Supreme Court case of Miller v. Rhode Island, the trial in the lower court had gone against the hospital and awarded a picayune (even by the standards of 1992, when it happened) judgment of $10,000. The Court remanded for a new trial and noted, “The doctrine of informed consent must, at times, yield to the practical considerations of emergency medical treatment.” I have attempted to make the same point here, though it has largely fallen on ears which are willingly deaf.
You cited Mohr v. Williams. In that 1905 case, in which an operation was performed on a woman’s left ear when she had consented to surgery on her right ear as a result of what the doctors found during the exploratory, the Minnesota State Supreme Court stated that “Whether or not Dr. Williams’ actions were authorized by Mrs. Mohr was a question of fact to be determined by a jury.” As to relevance to the case under discussion in this blog, I think you and I both agree that what happened in Deming should be sorted out by a jury, as well.
In one of the cases you cited, Shine v. Vega, the Massachusetts State Supreme Court said, “we must resolve the conflict between the right of a competent adult to refuse medical treatment and the interest of a physician in preserving life without fear of liability.” I believe this will be very true of Eckert v. City of Deming when it comes to trial.
Folks, today marks exactly a month since the first blog entry on this topic (86 comments), which was followed by this one, now up to 174 comments. My position from the beginning – the whole point of both entries – was that both sides should be heard, and a rush to judgment should be avoided. That seems to be the minority viewpoint. In those 260 or so comments, the only one that didn’t see the light of day was one in which a commentator from one side viciously attacked the character of another commentator, behavior not condoned here.
I believe both sides have been thoroughly aired as best as they can be with the one-sided information now available to us. I find it ironic that those who want both sides aired are described as jack-booted thugs, while the supposed champions of individual freedom are perfectly willing to tie nooses for accused cops and docs whose side has not yet been aired in detail…and those leading the lynch mob seem to think they’re on the moral high road.
For the last several days, the discussion has descended into a handful of us who are repeating the same things. My experience has been that an argument going in circles presages that argument circling the drain.
When cases are presented as unequivocal evidence for one side, and turn out to be not only equivocal but occasionally the opposite of what the presenter said they were, that drain begins to gurgle ominously.
All have had their say. Hopefully, plaintiff and defense will have their say in the Deming case as well, but until that time, this discussion thread is now CLOSED.