Jeff Segal, MD, JD, FACS
Have you ever had a patient who, in the middle of a procedure, said “Please stop. It hurts.” Never? Almost every doctor has heard these words once.
One doctor apparently did not heed these words quickly enough. He was sued for battery. Battery is an “intentional tort.” It is different than negligence. Many professional liability policies exclude coverage of intentional torts – such as battery.
Here’s what happened. It’s an old case, but it’s instructive. Shirley Coulter underwent outpatient surgery to remove a mass on her lower eyelid. An automated blood pressure cuff was placed on the patient’s arm – to monitor her blood pressure. The first time it inflated, Coulter testified she felt extreme pain, began to sweat and tremble, and demanded the cuff be removed.
She claimed the cuff inflated a second time. She again cried for someone to remove the cuff.
The patient said it was not until several minutes later that her demands were heeded. The cuff was removed. Surgery continued uneventfully. (By the way, the doctor and nursing staff testified that the cuff only inflated a total of two times).
Coulter sued the doctor for battery. Battery is an offensive “touching” of another person’s body without her consent. The patient argued she gave consent for the procedure. Then she withdrew consent for one part of the procedure – in the middle.
This case percolated to the Kentucky Supreme Court (Coulter v. Thomas, 33 S.W.3d 522 (2000)), and its decision was rendered 8 years after the cuff’s inflation / deflation cycle.
The patient argued that a subsequent surgery on her pronator teres (releasing the median nerve) demonstrated damage to the nerve. Never mind the pronator teres is well distal to the typical location of a blood pressure cuff. Perhaps at this surgicenter, the doctor places BP cuffs around the forearm. I don’t want to judge.
The Court ruled that a patient can revoke consent – (a) if the revocation is clear and can evoke no doubt in the minds of reasonable men that consent was revoked; and (b) “it must be medically feasible for the doctor to desist in treatment or examination without the cassation being detrimental to the patient’s health or life from a medical viewpoint.”
Apparently the patient’s demand to remove the cuff qualified for the first prong. And the procedure was indeed completed safely without the cuff. Once consent was revoked, battery occurred.
Who would guess a blood pressure cuff could create such drama?
Can a patient who is under the influence of ‘conscious sedation’ during a procedure, such as GI Endoscopy, withdraw her consent during the procedure?
If the blood pressure cuff was so damaging, doesn’t the doctor have a case against the blood pressure machine? I assume the machine was defective or perhaps the wrong size cuff was used? Perhaps, as you suggested the cuff may have been placed in the wrong position?
We use automatic blood pressure devices all day long, it would be nice to know what actually went wrong for a nerve repair procedure to become necessary.
Thank you for sharing these cases, it is very important to be aware as to when the consent for the procedure is withdrawn!
Outpatient procedures are on the rise. Although we give the hospitals a lot of flack for their detailed policies, there is something to be learned by hospital procedural policies. Most hospital policies that have been developed, while not in the best interest of the patient or physician, do address protective issues for the hospital.
Medical Battery is something that requires a little common sense and compassion for the patient at hand. A patient need not specifically say “Stop!”. All they need to do is make it known they are uncomfortable, and a physician could be facing criminal charges for battery. Just like in a hospital setting, physicians are the captain of the ship – more so in an outpatient setting. Be the captain of the ship and abort the mission – the surgery.
When conducting a procedure, if a patient is not feeling comfortable, you need to stop and document the situation; “the patient could not tolerate the procedure” should suffice. If you are doing a managed care procedure (ie Varicose Vein EVLT), the document everything you did, and then state exactly where you stopped the procedure. A discontinued procedure is partially billable. If a cash pay patient, if it is possible to have a clause in the consent that they still have to pay for supplies and time even if the procedure must be cancelled.
Plastic Surgeons know a great deal about these situations. Sometimes a patient wants the procedure but do not want to deal with the stress that goes with that surgery. In the case where a patient cannot tolerate something like a blood pressure cuff, either cancel the procedure or have someone in the OR to take their pressure manually, and limit inflation to 180 mmHg (if possible). If their systolic pressure if above 200 mmHg, and you have no documentation supporting a DX of hypertension, you should cancel and consider a cardiology clearance – even for a simple outpatient procedure. In reality, this should be tested in the preoperative setting, prior to starting the procedure.
If you are in the middle of a procedure and a patient is obviously in pain, or complaining, it is in your best interest to discontinue the procedure and document the reason was that the patient could not tolerate the procedure. Speak to any family, with the patient’s consent, about the reason for stopping. Then ask them to return to the clinic, at the next clinic day (not the next “available” appointment) to discuss other options, if any.
Generally, outpatient procedures are completely elective. The patient has the right to decline surgery, regardless of the impact on their health (some exceptions apply).
Do not get trapped in a Medical Battery case. Protect yourself, with your right to discontinue the procedure. If you are worried you may be in the grey area, cancel the case and contact your agent immediately.
Erik Khan
CEO
ES Physician Agent
Great article on a topic often overlooked at CME conference. I lecture about battery in the medical context quite often. Medical professionals often run into these issues in three context: the verbal order for restraints, involuntary commitment orders and cases involving third party consent.
Well done.
Perhaps this was a positive Trousseau Sign suggesting hypothyroidism. Were that the case, would it have changed the outcome?
David (and all others who are curious)-
In response to your question, if a patient can withdraw consent- the answer is generally yes. A person who is under the influence of drugs or alcohol cannot generally give consent for something to be done, but they can withdraw consent at any moment in time. This is generally true in any walk of life.
Justice J Arabian, in a California appeals case (Thor v. Superior Court (Andrews) (1993)
5 Cal. 4th 725 [21 Cal. Rptr. 2d 357, 855 P.2d 375]) stated, “More than a century ago, the United States Supreme Court declared, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. … ‘The right to one’s person may be said to be a right of complete immunity: to be let alone.’ [Citation.]” (Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250, 251 [35 L.Ed. 734, 737, 11 S.Ct. 1000].) ” This specific case had to do with a patient’s right to refuse life saving treatment even though he was a prisoner in the penal system.
Simply put, medical battery is defined as “the intentional violation of a patient’s right to direct their own medical care” [Citation] (http://www.legalmatch.com/law-library/article/medical-battery.html). With that said, you have to look at what a jury sees. In the case described by Dr. Segal, this seemed like a completely elective case. The fact they patient complained about comfort involving the blood pressure cuff, and then wanted the procedure to stop was the patient’s right. Further, those who evaluate, investigate and prosecute the crime probably do not know that much about medical procedures. Because of this, the Patient’s Bill of Rights was published and is referenced in many patient disputes. For your reference, the National Health Council adopted these bill of rights in 1995, http://www.nationalhealthcouncil.org/pages/page-content.php?pageid=66 . Be-it-known that each state generally publishes patient’s rights that are more strict and generally adopted by statute.
The fact remains, she didn’t even have to specifically say, “Stop!” She need only implied that she withdrew consent and the procedure must conclude. Hopefully, this is not an issue most physicians face, but it only takes 1 case of Medical Battery to end your career.
The best policy that every physician can have is to use their gut feeling, and have a written consent for all elective procedures, beyond any and all hospital consents. This is the only way to prove that the patient gave consent, was informed of the benefits, potential outcomes, and risks associated, and that they were no coerced into any decision. You can never have too many documents stating a patient’s informed consent. Further, maintain a strict policy that if any component of the consent must be changed (in any fashion), that the procedure will be rescheduled if the patient had already taken any psychotropic/hallucinogenic medication. Patients may complain briefly about the inconvenience, but it is much easier to explain a cancellation due to a change than explain doing something the patient does not want. Simply explain that it is for the patient’s protection, above all else.
Remember, that while a patient has the right to withdraw consent for any reason, you have the right to discontinue to protect the patient and their rights.
Erik Khan
Chief Executive Officer
ES Physician Agent