Wednesday, December 16, 2009

What Is A Patients' Right?

At the end of life, sedating a patient properly to make certain they are without pain is difficult. Drugs can be disorienting, often the patient is not fully conscious, communication can be muddled and difficult to understand. The influence of concerned family members and attending staff can all filter into an untranslatable request or denial of services. Patient requests are easy to ignore.

So too, it seems, that patients during routine procedures are often difficult to understand, according to the doctor in a case in Florida who followed through on a colonoscopy even after the patient's sedation wore off. She has charged that she was under intense pain and wanted the doctor to stop the procedure. He has testified that he thought completing the procedure was in the patient's best interest.

If a doctor's already started a procedure, then the patient begs him to stop, does he have to?

Apparently not, attorneys for the Florida Department of Health say, if the patient signed a consent form giving permission for the procedure.

Health News Florida reports that after a Pasco County patient complained that happened to her during a colonoscopy performed by gastroenterologist Kozhimala John last year, DOH lawyers looked for some clause in the Medical Practice Act that would apply.

They initially filed a complaint under the wrong-side or wrong-procedure statute, reasoning that the patient consented to a colonoscopy with anesthesia, not one without it. But the doctor's attorney said that wouldn't fly, and they decided he was right.

"There was unnecessary suffering inflicted," DOH prosecutor Robert A. Milne told the Florida Board of Medicine "but we had to (drop the charges) for legal reasons."

In the end the Zephyrhills doctor, who is board-certified in internal medicine and gastroenterology, was charged only with inadequate record-keeping for failing to document the many ways the colonoscopy went awry.

When the Board of Medicine heard his case in Orlando earlier this month, some members fumed about the state dropping the more serious accusation.

Donald Mullins, one of three non-physicians on the 15-member board, spoke sharply to John.

"It's her body. She needed to make the decision. These were not your decisions to make I'm disgusted that we're going to (accept the settlement). I just can't believe it!"

Miami pediatrician Onelia Lage also said John displayed too little regard for the wishes of his patient. "Regardless of the legalities, when the patient screamed and said, 'No!,"You needed to listen."

But John's attorney, Bruce Lamb of Tampa, pointed out that the state could not prevail if it took the case to a formal hearing. Lamb, a former DOH prosecutor turned defense counsel, noted that the settlement agreement on the record-keeping charge was unusually strict.

In it, John neither admitted nor denied violation of the law but accepted a reprimand and $15,000 fine. He agreed to perform 100 hours of community service and take a course on "risk management."

A description of the May 2008 day of the colonoscopy is contained in DOH's investigative records. They show the colonoscopy was under way when the sedation, a common mix of Versed and Fentanyl, wore off. The patient told John he was hurting her and pleaded for him to stop, the records show.

He tried to increase the sedation, but there were problems with the IV. "Please stop!" the patient kept insisting, while the nurse tried to shush her, the file shows.

The doctor didn't stop until he was done, he told the investigator, because he thought he was acting in the patient's best interests. He was almost done, he said, and he wasn't sure whether she was thinking clearly because of the drugs. He said he didn't want to put her through it again, since patients say the worst part of a colonoscopy is the preparation for it — drinking large amounts of chalky liquid and many hours in the bathroom to clean the colon for a sharp image.

But the patient was unhappy that her protest went unheeded. She filed a complaint with DOH.

John said the reason the scope was difficult to push through was the scar tissue in the patient's abdomen left after several surgeries. He said that the patient's perception that the nurse was holding her down may have been a misunderstanding, since he asked the nurse to apply pressure to the abdomen.

He had trouble administering more sedation because the intravenous line kept infiltrating the vein and he couldn't find other usable veins, John said.

He concluded: "Most people would say: 'I didn't really mean for you to stop the procedure even though I told you to...' She was under sedation. I couldn't take her words for sure."

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