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Dwayne B.
Dwayne B., Attorney
Category: Legal
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Experience:  Began practicing law in 1992
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I recently had a colonoscopy. I was given Propofol. As I was

Customer Question

I recently had a colonoscopy. I was given Propofol. As I was being wheeled out of the outpatient facility, I asked to go to the bathroom and was wheeled there. I arose out of the wheelchair and walked a few feet to the toilet. The nurse stood 2 to 3 feet to my left and refused to leave when I asked for my privacy and said, “It’s against policy.” I responded, “Do you mean that your policy requires that if I want to urinate, I have to do it while you watch?” She responded, “Yes,” to which I retorted, “I have more self respect and dignity than to allow that to happen.” She responded with, “Then you can deal with it after I take you to your car.” After I was brought to my awaiting ride, I walked 50 yards to a bathroom and back without mishap. I phoned the facility the next day I was told by a nurse administrator that the offending nurse followed proper protocol because I was unsteady on my feet and the protocol was necessary to protect the facility from litigation. I phoned every other clinic in which colonoscopies were performed and asked their representatives if what I experienced were among the practices there. All said, “No.” Among the responses I received were, “I never heard of that before,” “That’s crazy,” “That’s ridiculous,” and “That is unethical.” I filed a complaint with the state’s Division of Health Services and was informed by a nurse-administrator that the offending nurse operated well within her authority as a nurse. She defended the offending nurse with, “I’ve had to give colonoscopies to men” over their objections. No action was taken. I filed a complaint with the state Board of Nursing and received no reply. A month later, I filed another complaint but still no reply. I phoned the office of the State Board of Nursing and was told I would receive a reply the next week. I received no reply. I phoned twice and left messages but, again received no reply. I filed a complaint with the American Nurses Association against the inaction of the State Board, but received no response.
Was the treatment I received by the offending nurse consistent with nursing ethics and standard nursing practice? If so, what ethical standards were violated and how should the nurse have behaved? If not, how can the treatment be justified? Was the belief that such treatment is necessary to protect the facility from litigation a legitimate justification? Did the Division of Health Services nurse respond appropriately? Was the refusal of the State Board of Nursing to consider my complaint appropriate? If apropos, what can I do and/or where can I go to ensure that the people involved are held accountable?
Submitted: 10 months ago.
Category: Legal
Expert:  Dwayne B. replied 10 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I disagree that it was unethical and do believe that it is consistent with standard nursing practice under the situation you describe.

The reason for that is there is not a specific code of ethics that the behavior violation and, in addition, it is not a terribly unusual requirement for clinics or hospitals. For many years I practiced medical practice as well as personal injury and as a result I have seen a number of policies and procedures manuals from a wide variety of health care providers ranging from very small offices all the way up to some of the largest chains. In addition, I have both attended and lectured at various Continuing Legal Education Seminars.

You correctly identified the issue from the health care provider's point of view, " to protect the facility from litigation". Many cases against hospitals are based on falls that occur when a patient is in a weakened or drugged state> these cases involve a failure to supervise as their number one complaint, although they can also involve a failure to restrain, failure to use bed rails, etc.

It is one of the reasons that most people are taken to the hospital door or to their car by wheelchair. Most people don't actually feel like they need it but others have a delayed reaction and take a spill when they thought they were fine. That can even occur when they are in the restroom which is likely the reason they will give for the nurse keeping here eye on you.

You can see the AZ Code of Ethics for nursing by going to http://www.nursingworld.org/FunctionalMenuCategories/AboutANA/WhoWeAre/CMA/AzNA.aspx and selecting EThics form the menu bar.

If you choose to file a complaint you can do so at https://www.azbn.gov/discipline-complaints/file-a-complaint-or-self-report/

However, it is likely that the board will dismiss the complaint without a hearing based on the facts you gave.

I'm sorry that I have to give you what I assume is information you disagree with but as I mentioned I have looked at a lot of cases and a lot of documents and the nurse did not act inappropriately as far as the law and the Code of Ethics is concerned.

Customer: replied 10 months ago.
Dwayne B. : Thank you for responding to my queries. However, I do need some clarification.First, you write, “If you choose to file a complaint you can do so at https://www.azbn.gov/disciplin…” which brought me to the AZ Board of Nursing. As I indicated in my initial request, I already filed a written complaint with the Board, repeated the complaint later, and made a number of phone calls without receiving a response. I also filed a complaint with the ANA regarding the Board’s refusal to consider my complaint. Where do I go from here?Second, you state, “I disagree that it was unethical.” By “it” do you mean the nurse’s intended behavior as I described it?
Third, your first argument is, it is not unethical because “there is not a specific code of ethics that the behavior violation [sic].” Do you mean the nurse’s intended action (which I did not allow her to complete) is not unethical because it does not violate a specific standard in the ANA’s Ethical Codes for Nurses?
Fourth, your second argument is, “it is not a terribly unusual requirement for clinics or hospitals.” Other than the clinic in question, I have yet to find a facility in which colonoscopies are done that requires patients to perform excretory functions in the presence of nurses and over their objections. My data are from participant observations and from surveys of facilities and colonoscopy patients. I would be pleased to name the clinics and hospitals from which I gathered my data and you may confirm my finding if you so choose. Will you please provide me with any of those clinics and hospitals to which you allude that sport policies sanctioning the behaviors in question so that I may add them to the data I already have?
Fifth, your second argument is, “it is consistent with standard nursing practice under the situation you describe.” May I interpret this argument as a variant of the “everyone is (or most everyone is, or a goodly number are) doing it justification”? Will you please complete your argument by providing evidence of your assertion? References to pertinent sections of any contemporary nursing model (e.g., the Roy model, Jean Watson’s caring model) which defends the practice will do. Reference to the writings of any authoritative nursing organization (e.g., ANA, state nursing boards, etc.) will be helpful. Reference to one or more of the documents you mention and cases that are on point about which you write will do. I’ve failed in my search to find evidence that supports your argument.Thank you in advance for your time and cooperation. Answers to these questions will help inform my ignorance on the matter in question.Ray B.
Expert:  Dwayne B. replied 10 months ago.

On the first issues, I wasn't clear if you had just called or if you had filed a formal, written complaint. For some reason it sounded as if you had just called and complained, which many people equate filing a written complaint and it is not.

On the second issue, yes, the nurse's behavior.

Third, yes. I don't believe that it violates a specific ethical standard or that it violates the standard of care. On ethical issues it almost always depends on the rules where as the standard of care can be based on the rules or on the common law.

Fourth, I think the issue may be that you are looking too narrowly. The issue that will be raised is not if "people who have had colonoscopes" would be required to be watched it would be "would people who were given the type of drug you were given" need to be watched.

Unfortunately, I can't give you references to the specific models of nursing because I've never seen one that addresses the issue. As I indicated the issue is usually with the specific requirements of that hospital and I'm not allowed to reveal names of specific hospitals because all of the cases in which I was involved were resolved through settlements with non-disclosure agreements. "Models of nursing" aren't usually used in lawsuits since we are required to hire expert witnesses and use the specific guides promulgated by the hospital/medical provider or the nursing boards for that state.

If you want to pursue the matter then my suggestion is to hire an expert witness in the area of nursing care. I can provide you some names that I have used in the past or you can locate one at www.experts.com. They can review your specific records and see if they agree or disagree with you on what is appropriate. Anytime I am trying to decide whether to take a case based on nursing issues I always hire one of the experts first to give me their opinion and write a report. If they can't find an issue then you could never prove one to the board or in a lawsuit.

I think the problem is that you are expecting the various reports to state whether you should or shouldn't do this and they usually don't, since the nurses are not expected to make this decision themselves (which is what the models cover) they are expected to follow the rules laid out by the doctors and medical providers as to this issue.

Customer: replied 10 months ago.
Dwayne B.Thank you for a second time for your input.In the last paragraph of your first correspondence with me, you err in assuming that I seek confirmation for my point of view. Although I can understand why you made this inference from what I wrote, nothing could be further from the truth. Indeed, my queries to “justanswer” were offered in hopes that I would be rewarded with cogent ethical arguments either defending or negating the ethical propriety of nurses watching men urinate over their objections following colonoscopies in order to protect the facilities at which they work from litigation.
Your argument is that the behavior in question is not unethical because it does not violate “a specific code of ethics” in the ANA’s codes (to which you allude later in your first epistle) and because “it is not a terribly unusual requirement for clinics or hospitals.”
Aside from the evidence that may belie your second criterion (depending on what you mean by “not terribly unusual”), your argument is a curious one, indeed. Regarding the specificity criterion, it has always been my understanding that, with few exceptions, ethical codes take the form of general or abstract principles absent of specific operationalizations. For example, the Belmont Codes – which has been used as the prototypes for professional codes of ethics, client/patient rights documents, and by the feds to guide the process of human subject research – identifies a number of ethical principles one of which is “respect for persons.” One “ethical conviction” encompassed by this principle is that human beings “should be treated as autonomous agents.” Their status as autonomous beings gives them the ethical rights to, among other things, informed consent and to privacy. Similarly, the ANA’s ethical codes for patient-nurse interactions tend to be couched in general terms. No, ethical document can exhaust all examples of ethical conformity and ethical deviancies, albeit examples may be given.Your argument assumes that the ethical status of an action depends on whether or not it is specified in a code of ethics and on the frequency of its commission. These are chilling requirements for establishing the ethical status of an action for they require one to concede that what constitutes ethical behavior must necessarily vary across occupations, place, and time. For example, permitting students and outside observers to participate in patient care without the latter’s consent would be considered ethically questionable for physicians but not nurses since it is specifically addressed as a deviation from an ethical obligation in the AMA’s code of ethics (opinions 5.0591 and 8.087) but not in the ANA’s code (across occupations). Nonconsensual pelvic and prostate examinations by medical students on anesthetized patients would not be considered unethical in those hospitals where they are commonplace and not in violation of specific ethical statements but not in hospitals where they don’t occur and are ethically verboten (across places) (see, e.g., Peter Ubel, et.al. 2003. “Don’t Ask, Don’t Tell: A Change in Medical Student Attitudes After Obstetrics/Gynecology Clerkships Toward Seeking Consent for Pelvic Examinations on an Anesthetized Patient.” American Journal of Obstetrics and Gynecology. 188: 575-579). The compulsory sterilization and sequestration of the “unfit” by U.S. physicians during the period of the American eugenics movement could not be considered unethical because, at the time, it was commonplace and was not specifically addressed in a code of ethics (across time) (see, e.g., Edwin Black, War Against the Weak: Eugenics and America’s Campaign to Create a Master Race).These are just a fraction of the logical extensions of your argument. If you find the logical extensions of your argument (e.g., compulsory sterilization by medical eugenicists cannot be considered unethical because at the time they were committed they were not reproved by a set of ethical standards and because they were commonplace) easy to accept and believe, then your argument is, by definition, a cogent one. If you cannot, then your argument is not cogent and must be abandoned or, in some way, modified to make it cogent. If he latter applies to you, will you or can you make a cogent argument defending the ethical propriety of the behavior in question?
Ray B.
Customer: replied 10 months ago.
Dear Dwayne B. : Thank you for a second time for your input.In the last paragraph of your first correspondence with me, you err in assuming that I seek confirmation for my point of view. Although I can understand why you made this inference from what I wrote, nothing could be further from the truth. Indeed, my queries to “justanswer” were offered in hopes that I would be rewarded with cogent ethical arguments either defending or negating the ethical propriety of nurses watching men urinate over their objections following colonoscopies in order to protect the facilities at which they work from litigation.
Your argument is that the behavior in question is not unethical because it does not violate “a specific code of ethics” in the ANA’s codes (to which you allude later in your first epistle) and because “it is not a terribly unusual requirement for clinics or hospitals.”
Aside from the evidence that may belie your second criterion (depending on what you mean by “not terribly unusual”), your argument is a curious one, indeed. Regarding the specificity criterion, it has always been my understanding that, with few exceptions, ethical codes take the form of general or abstract principles absent of specific operationalizations. For example, the Belmont Codes – which has been used as the prototypes for professional codes of ethics, client/patient rights documents, and by the feds to guide the process of human subject research – identifies a number of ethical principles one of which is “respect for persons.” One “ethical conviction” encompassed by this principle is that human beings “should be treated as autonomous agents.” Their status as autonomous beings gives them the ethical rights to, among other things, informed consent and to privacy. Similarly, the ANA’s ethical codes for patient-nurse interactions tend to be couched in general terms. No, ethical document can exhaust all examples of ethical conformity and ethical deviancies, albeit examples may be given.
Your argument assumes that the ethical status of an action depends on whether or not it is specified in a code of ethics and on the frequency of its commission. These are chilling requirements for establishing the ethical status of an action for they require one to concede that what constitutes ethical behavior must necessarily vary across occupations, place, and time. For example, permitting students and outside observers to participate in patient care without the latter’s consent would be considered ethically questionable for physicians but not nurses since it is specifically addressed as a deviation from an ethical obligation in the AMA’s code of ethics (opinions 5.0591 and 8.087) but not in the ANA’s code. Nonconsensual pelvic and prostate examinations by medical students on anesthetized patients would not be considered unethical in those hospitals where they are commonplace and not in violation of specific ethical statements but not in hospitals where they don’t occur and are ethically verboten (see, e.g., Peter Ubel, et.al. 2003. “Don’t Ask, Don’t Tell: A Change in Medical Student Attitudes After Obstetrics/Gynecology Clerkships Toward Seeking Consent for Pelvic Examinations on an Anesthetized Patient.” American Journal of Obstetrics and Gynecology. 188: 575-579). The compulsory sterilization and sequestration of the “unfit” by U.S. physicians during the period of the American eugenics movement could not be considered unethical because, at the time, it was commonplace and was not specifically addressed in a code of ethics (see, e.g., Edwin Black, War Against the Weak: Eugenics and America’s Campaign to Create a Master Race).These are just a fraction of the logical extensions of your argument. If you find the logical extensions of your argument (e.g., compulsory sterilization by medical eugenicists cannot be considered unethical because at the time they were committed they were not reproved by a set of ethical standards and because they were commonplace) easy to accept and believe, then your argument is, by definition, a cogent one. If you cannot, then your argument is not cogent and must be abandoned or, in some way, modified to make it cogent. If he latter applies to you, will you or can you make a cogent argument defending the ethical propriety of the behavior in question?Ray B.
Expert:  Dwayne B. replied 10 months ago.

You pose interesting arguments and question.

You state "Your argument assumes that the ethical status of an action depends on whether or not it is specified in a code of ethics and on the frequency of its commission."

However, you need to be aware that I am looking at this though a very narrow spectrum, that of the legal system (and I am including disciplinary actions in that spectrum). If you are asking from a "moral" standpoint, then my answer would be quite different from the "legal" standpoint. On a personal level I disagree with many laws and the interpretation of them by the courts and other authorities. However, I have to deal with them as they are interpreted by those in power and not on my personal beliefs. In addition, I have to also view them through my own experiences in the system.

The primary reason that I believe the results would be as I point out is that the court (or other authorities) will view this with a risk vs. harm analysis. As I mentioned, most medical care providers have a very strict set of rules regarding the observation of patients following any type of procedure or medication. I'm not personally familiar with the drug Propofol and have never been involved in a case involving that specific drug. However, I have read about it and know that it has a number of side effects including a possible reduction in blood pressure, seizures, etc.

However, the medical providers normally do not break the medications down in their guidelines they simply state that a patient must be observed and accompanied after certain procedures and coloscopies, as well as the scope that goes down the throat, are two of these that are normally included.

In the risk vs. harm analysis, the only harm to the patient from being observed is that of social discomfort. There is no medical harm that will result. On the other hand, if the nurse did not observe you and you suddenly suffered a seizure or a drop in blood pressure, or any other of a myriad of possibilities, then you could easily suffer a dramatic injury by striking your head or some other body part on the sink, toilet, etc.

Since hospitals and nursing homes are sued on a regular basis for the failure to restrain, failure to use bed rails, and failure to monitor patients, it is obvious that these type of incidents do occur with some frequency.

I do believe that it is extremely hard, and to a degree unconstitutional, to hold a nurse responsible for an ethical violation that is not clearly spelled out. Since the licensing boards are either a governmental entity or a quasi-governmental entity then they must operate with an eye toward due process and punishing a nurse for an ethical violation that is not clearly spelled out would not be upheld by the courts.

Is it possible that the hospital does not have a policy regarding watching people who are recovering for surgery/procedures? Sure, it's possible but it's unlikely. In addition, it is also unlikely a hospital would ever hold a nurse accountable for erring on the side of caution.

I have represented nurses as they appeared before the boards before for complaints and, in my capacity as a plaintiff's lawyer and as a trial consultant, I have been involved with filing complaints against nurses. None of them were under your exact facts, but some of them did involve falls when they shouldn't have occurred and so I am familiar with a slight variation on your facts.

If you would like, I can get a couple of other experts to read over this and see if they agree with my assessments but I'm certain of my position and arguments. It doesn't mean you can't file a complaint anyway but I am quite certain that if I, or anyone that has done trial law, were hired on this type of case then the nurse would not be punished.

That is also supported by the statements you received form the Nurse Administrator at the clinic and the Division of Health Services. I am relatively sure that when you hear back from the State Board of Nursing they are going to tell you the same thing.

In addition, should you visit with a local attorney that handles personal injury or malpractice, the two areas of the law that most directly apply to this, that they are going to tell you the same thing, although they will also cover the "lack of damages" aspect of the cae which really has nothing to do with whether there was a violation or not.

Customer: replied 10 months ago.
Dwane B.: You suggest that you are “looking at this through a very narrow spectrum, that of the legal system.” However, my questions require an answer based on one’s knowledge of ethics, not law.
The distinction between law and ethics was recognized in the mid-eighteenth century by Immanuel Kant who wrote about “questions of virtue [morality] and questions of jurisprudence [legality].” Thus, any action may be classified as being illegal and unethical, illegal but ethical, legal but unethical, or both legal and ethical.It is unclear what your position on the matter at hand is. At first blush, it appears as though you believe the behavior in question is both ethical and legal. The latter, however, is more apparent than the former; your opinion regarding the ethics of the behavior under scrutiny, which is my interest, is ambiguous. In your first correspondence with me you write, “I disagree that it was unethical” and then you make two arguments for your opinion. In your last correspondence with me you write, “If you are asking from a ‘moral’ standpoint, then my answer would be quite different from the ‘legal’ standpoint” which seems to suggest that you question the ethical propriety of the nurse’s behavior as described. If so, then your position would be best subsumed in the “legal but unethical” category. If you do believe the nurse’s behavior in question was unethical, then would you answer my original questions with that in mind? What ethical standards were violated and how should the nurse have behaved? Was the belief that such treatment is necessary to protect the facility from litigation [an ethically] legitimate justification? Was the refusal of the State Board of Nursing to consider my complaint [ethically] appropriate? Thank you in advance.Now, I hope you bear with me as I respond to your last correspondence with me.Given I refused the nurse’s invitation to urinate in front of her, there was no measurable harm done (except for a precipitous increase in my blood pressure – just the opposite of what one would expect from Propofol) – and, consequently, I never intended to file suit. So the legal issue is whether or not a female nurse who, over the objections of a male patient, watches that patient urinate has engaged in tortuous conduct. I believe the answer is, as a matter of law, more ambiguous than you let on.
Had I been compelled through necessity to urinate in front of the nurse over my objections, then I may have sought to redress my grievances before the courts. My attorney might be reassured by the arguments made by Robin Wilson (2004. “Using Tort Law to Secure Patient Dignity.” Journal of the Association of Trial Lawyers of America. Volume 42). Although Wilson uses unauthorized pelvic exams by healthcare students for illustrative purposes, her arguments for using tort law to curtail the unauthorized threats to human dignity can be applied more broadly. She “evaluates a patient’s likely success [at using tort law to secure patient dignity] under theories of medical battery and malpractice, failure to obtain informed consent, and breach of fiduciary duty.” She identifies providers’ typical justifications for breaches and parries them with reasoned counterarguments after which she “concludes that the tort system may be the most effective vehicle to redress the unauthorized” attacks by healthcare providers on patients’ dignity.
Were you the defense attorney, I suppose one of your arguments would entail trivializing the negative impact of the nurse’s intrusive behavior with, “the only harm to the patient . . . is that of social discomfort. There is no medical harm done.” However, research on the subject of privacy intrusions in health care organizations and other facilities has suggested far greater negative effects than just “social discomfort.” This knowledge has led some courts to conclude that (to paraphrase) the desire of Americans to cover their naked bodies from the view of others, especially those of the opposite sex, is a matter of elementary self respect, personal dignity, and fundamental right to privacy. CONTINUED
Customer: replied 10 months ago.
Anyone who would usurp those rights plays the role of the tyrant. It is a strange doctrine, indeed, that would require a person to relinquish those rights by virtue of the misfortune of falling ill and having to enter a healthcare facility (see, e.g., York v. Story, In re. Long, Backus v. Baptist Health, EEOC v. Mercy Health, Shulman v. Group Productions, Hansen v. California Department of Corrections (CDC)).
The Backus Court in particular was pretty much on point when it cited A. Larson: “It would be a strange doctrine that would decree that the sanctity of the right to privacy in the performance of excretory functions, fully respected in a public restroom, is forfeited by the fact of falling ill and becoming hospitalized.” Furthermore, in the Hansen case, the Court refused to grant immunity to two CDC employees who, over Hansen’s objections, watched while she urinated claiming, as is the case of the nurse in question, “these two defendants were not exercising discretion but simply following a policy set by others . . .”
Implicit in the Courts’ decisions is that intruding on a person’s privacy is, in and of itself, harmful; to demonstrate legal culpability does not require a plaintiff to provide evidence that he has been harmed, medically or otherwise. More specifically, “It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity. . . A man [whose personal freedom and dignity] are usurped is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant. . . One who intentionally intrudes, physically or otherwise, upon [a person’s] private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”
Second, you can visit a number of on-line sites run by physicians and you will be informed of the traumatic effects that privacy intrusions have had on some patients (see, e.g., https://www.google.com/?gws_rd=ssl#q=modesty+blog+volume+74; https://www.google.com/?gws_rd=ssl#q=joel+sherman+blog. One could very well conclude from this reading that the Courts mentioned above were right on target; the effects on patients of treatment of the sort in question can be and frequently is far from trivial. Here and elsewhere you can read the poignant words of mostly male patients, some of whom are critically ill, who have chosen not to seek healthcare or even to die rather than continue submitting themselves to the indignities – most of them unnecessary – inherent in many of today’s healthcare institutions. Their experiences include, but are nowhere near limited to the following: Their naked bodies have been put on display before anyone attending physicians believe is deserving, including children who shadow physicians in order to satiate their curiosity. They have been prepped for surgery in the presence of other patients, including those of the opposite sex. Nurses have unnecessarily exposed them by “whipping” sheets off of their bodies, sometimes in the presence of students and even visitors. They have undergone intimate examinations while young scribes of the opposite sex have looked on. They have been denied treatment for complaining about unnecessary intrusions on their privacy. Examination room doors have been left open while they are in various stages of undress or are using urinals or bedpans. People – without knocking, introduction, explanation or consent – have walked into rooms in the middle of intimate examinations or while they are engaged in personal activities. They have been poked and prodded without their consent and when they are at their most vulnerable by healthcare students. They have been ridiculed and shamed when they try to exercise their right to privacy. Pejoratives have been used by providers to describe them. Their body or body part peculiarities have been used as the source of jokes.
Just as one could argue that “social discomfort” is the only harm that befalls a man by watching him urinate over his objection, one could make the same argument vis-à-vis patients’ experiences described in the last paragraph. However, this argument is belied by the evidence. A parallel argument made by some physicians is worth noting. Patients, they say, who prefer to die than weather the indignities imposed on them by healthcare providers are irrational. In response, one dying patient proclaimed, “Those physicians may not know it, but there are things that dig at a man that are far worse than dying.” CONTINUED
Customer: replied 10 months ago.
Third, the treatment of the sort I have described may have broader ramifications for the health of American males in general. More specifically, the research that I and nursing students conducted suggests that the common explanation for why men are less likely than women to seek medical care – viz., (to be brief) they have a “macho” image of themselves – may be a fiction. Our research suggests that it may instead or in addition be because they are more likely than women to be (using the theoretical concepts measured) dehumanized, objectified and mortified. Requiring men to urinate in front of female nurses over their objections is likely to qualify as a dehumanizing, objectifying, and mortifying situation. Furthermore, there are certain changes that have occurred and are occurring in the U.S. healthcare institution that may result in an even greater reduction in the likelihood that men will seek healthcare services when they need it or seek it only when their acute conditions become chronic.As a defense attorney, I suppose you would also argue that nurses watching men urinate after a colonoscopy and after Propofol has been administered is commonplace. The evidence I have is that such behavior is, in fact, quite rare, especially when patients object. Indeed, I have failed to find a single facility (except the one in question) in which colonoscopies and endoscopies are performed where such behavior is sanctioned. Patients’ self-respect, personal dignity, and fundamental right to privacy are considered sacrosanct in these facilities. In fact, one of the reasons Propofol is administered, I have been told, is that its intoxicating effects wear off more quickly than other pharmaceutical options thereby permitting a timely ambulation and exit from the facility.Let me continue in the same vein with two facts mentioned in my first correspondence with you and undisputed by the nurse in question and by facility authorities. First, the nurse offered none of several available options to watching me urinate while standing next to a toilet, options that would have ameliorated the problem. In my early adult years, I was employed in and in later years was on the boards of a number of healthcare organizations, including alcohol treatment agencies and women’s health facilities. They all valued patients’ right to privacy enough to train providers on how to protect patients and the facilities without vulgar intrusions on their privacy. Had any of the facilities sanctioned the type of treatment I received at the facility in question, I would have at the very least handed in my resignation.Second, you’ll remember that the nurse stood between 2 and 3 feet to my left. I have been trained in fall prevention and know that a person cannot expect to break another person’s fall standing that far away and to the patient’s side, especially when the patient is 6’2” and weighs 248 lbs., as in my case. The nurse in question may have been able to break my fall had I fallen to the left and to the left only. Her training taught her to position herself behind me in a “ready” position, holding my belt with one hand and shoulder with the other. To suggest that the posture she actually took indicated a concern for my health is certainly a charitable, if not a naïve, explanation and does not follow from the facts.My assessment of the likelihood I would have fallen while standing next to the toilet was slim to none. I had been given Propofol three times before the incident in question and never experienced an adverse event while urinating following a procedure. Furthermore, I am and was at the time of the incident in question a fit, athletic, intelligent person who had at the time of the incident lived with his body for 68 years and who demonstrably knew the limits of his physical, mental, and intellectual capabilities better than any two-year AD-prepared nurse who, at the time, had been with me for only five minutes. You’ll also remember that following my refusal, the nurse immediately wheeled me out of the facility where I walked 50 yards to and from a bathroom without mishap. One would be hard pressed to suggest that my feat was evidence of a high probability of falling. Of course, nobody in the facility knew anything pertinent about me, but it wouldn’t have mattered if they did. The policy, as verbally communicated to me, did not require the nurse to make a probabilistic judgment based on pertinent knowledge about me because it made no room for exceptions; everyone was treated the same, I was told, irrespective of the patient’s history, culture, physical capabilities, age, sex, level of cognition, intelligence, and so on ad infinitum. CONTINUED
Customer: replied 10 months ago.
If there is one thing Americans should have learned by now it is that in our democracy, laws (e.g., Jim Crow laws), policies, practices, and protocols cannot legitimately abridge human rights.
There are a number of legal decisions in addition to those listed above that may be pertinent to the discussion. At least seven cases from Union Pacific v. Botsford [1891] to Stouffer v. Reid [2010]) recognize the legal right of sound-minded patients to refuse care and treatment. Was I sound-minded? There is no evidence I was not. Does an AD-prepared nurse absent any knowledge of my history, cognitive functioning, and physical capabilities have the expertise and authority to determine whether or not I am sound-minded just by looking at me? Had I failed the frequently used “oriented times three” test, the nurse may have been on more solid ground and I might have been more sympathetic, but she did not even give me this simple test for sound-mindedness. It is my understanding that if a sound-minded patient refuses a provider’s offer to protect him from harm and the provider complies, then that patient assumes the risk, given that the provider makes a reasonable effort to ensure that the patient’s decision is an informed one. Am I correct?The legal/ethical precept that bolsters the decisions cited in the last paragraph is informed consent. The nurse in my situation never explained why she felt compelled to watch me urinate (to protect the facility from suit were I to have fallen) until the day after the event took place. And, had she watched me, she would have done so, not only without my consent, but over my pointed objection. Furthermore, a “Patient Rights & Responsibilities” document was given to me before the procedure took place. In the rights section, I was promised “to receive privacy in treatment,” “to be treated with dignity, respect, and consideration,” “an environment that preserves dignity and contributes to a positive self-image,” and to be shown “respect for my cultural and personal values.” At the same time I was informed that I was obligated to “follow all [clinic] policies.” When I asked at intake whether any of the clinic policies trumped my rights as listed, I was given an emphatic “No!” Thus, in my complaint to the facility, I included the following simple syllogism: “Any policy or practice that a reasonable person would find offensive and an intrusion on his privacy should be made known to him well before, not after, he undergoes a colonoscopy so he can make an informed decision regarding whether or not to seek a colonoscopy elsewhere. A reasonable man would find the requirement that he urinate in font of a female nurse against his will offensive and an intrusion of his privacy. Therefore, it is obligatory that [clinic’s name] inform patients and prospective patients of the policy that compels them to submit to the peculiar practices as described.” That I was not informed, indeed, that I was told there was no policy that trumped my rights, is duplicitous at the very least. What a cynical thing to do – to hand out a set of patient rights in spite of policies and practices that clinic personnel use as a defense to trump those rights.The value I and, it appears, those responsible for legal precedent place on informed consent explains why I found the Division of Health Service’s nurse’s response to my complaint chilling. She defended the action taken toward me by describing batteries in which she participated; viz., catheterizing men over their objections. Although it’s been 40 years since I took a criminal law class, 30 years since I conducted research for law enforcement agencies, and 20 years since I taught criminology, I think I recall what the various elements of criminal battery are. Those elements seem to be satisfied when a nurse or any healthcare provider catheterizes a patient over his explicit objections. Have the laws changed so much in the past 20 years that healthcare providers are now exempt from conformity to the same laws that govern the behaviors of the rest of us?You indicate that none of the complaints against nurses with whom you have been involved “were under [my] exact facts, but some of them did involve falls when they shouldn’t have occurred.” When Lexus Nexus was available to me, I conducted a search to find out if I could find a case that was on point – a case in which 1) a provider was not with a patient when s/he should have been, 2) the provider had left the patient alone because the patient wanted his privacy, and 3) the patient fell and was injured when, had a provider been present, s/he may have broken his fall. I found a number of cases where #1 and #3 were among the facts and the largest percent of cases involved the non-ambulatory aged in nursing homes. I found no case that was remotely on point. Your guess for why I found nothing on point is as good or better than mine. CONTINUED
Customer: replied 10 months ago.
As an aside, there is a possible irony inherent in the facility authority’s argument that the practice of watching men urinate over their objection is designed to protect the facility from litigation. Such a practice fosters ill-will, adversity, and the potential for an adversarial relationship between patients and health care providers. Far from decreasing the risk of litigation, the creation of a hostile environment may be counterproductive; it may increase the risk of litigation when something goes wrong or the patient perceives that something has gone wrong. Indeed, some studies have found that the best predictor of litigation and patients consulting with attorneys about the feasibility of litigation is not that a mistake has been made but the level of rapport developed between provider and patient. Ann Kellett (1987. “Healing Angry Wounds: The Roles of Apology and Mediation in Disputes Between Physicians and Patients.” Journal of Dispute Resolution. 111-131) did an excellent job making this point. Although her publication was in 1987, there is no reason to believe things have changed. In addition, contrary to popular opinion, the best evidence suggests that only a small fraction of patients who have been harmed by the negligence of healthcare providers ever resort to litigation. Harvard Medical Practices’ researchers found that, in the 1980s, between 1% and 4% of adverse events due to malpractice resulted in litigation. David Studdert’s research published in the New England Journal of Medicine in the new century showed similar figures. Although no analysis was done in any of the studies to determine why litigation did not follow a larger percent of adverse events, one of many reasonable explanations that may be induced from past research is that the high degree of rapport between providers and patients buffered the former from litigation when adverse events occur.By all means, go ahead and get a couple of other experts to read what you have written. But, please, include my arguments as well. In the meantime, I will be eternally beholding to you if you would kindly answer my original questions after changing your expertise hat from attorney to ethicist.Ray B.
Expert:  Dwayne B. replied 10 months ago.

I'm sorry, I can't change my hat because I'm not an "ethicist" and the question was placed in the legal section.

If you want someone to examine the ethics from something other than a legal standpoint then you would need to open a question asking these questions in another forum, perhaps the medical section on here or perhaps a forum on a board for nursing.

My position is that , as far as the law is concerned, whether she broke a code of ethics or not is the defining issue as to whether her conduct was "unethical" or illegal. As I've made clear, I don't see a Code of Ethics that she violated.

If I were defending the nurse against a complaint I would argue 1) that there is no code of ethics that applies and 2) that the hospital policy on patient safety is paramount in this instance.

I agree that no harm has to be proven for there to a breach of ethics, but there does have to be a rule. Since the state is the one who would be complaining about the nurse or handling her licensing issues then due process applies and due process requires that there be a rule or law specifically on point that warns you of what you can and cannot do. I don't see one here.

I will ask a couple of the other experts to look this thread over although it has gotten to the point it is a little long to ask them to read and consider.

My suggestion is that if you feel your rights and her ethics were violated, then pay a lawyer and file a lawsuit or, at the least, file a grievance against her with the nursing board and let them rule on the issue. I have given you my thoughts on the issue and we've gotten pretty far afield from the original questions and into a discussion of issues and argument that really have no effect on my opinion or any other legal opinion. It's into the matter of "should this be a policy now" which I have no p[onion on and which won't be an issue in court or before the board.

Customer: replied 10 months ago.
Dwayne B. : I am, of course, disappointed that you don’t have an “ethics cap.” I did click onto the medical section and it was this section that was highlighted as I wrote out my question. Given that the question required knowledge of ethics, I would think I would have been told that you did not have this knowledge and then be referred to another forum. A problem may lie with my less than perfect grasp of computer technology. Nevertheless, I appreciate the effort you expended in trying to accommodate my request. C’est la vie, c’est la guerre, c’est la merde. On en apprend toujours a ce sujet.You write, “I don’t see a Code of Ethics that she violated.” Now that I’ve studied the ANA codes to which you referred me, I think one trained in ethics might successfully argue that the nurse violated the following ANA provisions: 1.1, 1.2, 1.3, 1.4, 2.1, and 2.2. Rigid adherence to procedures that threaten patients’ rights to self-determination, elementary self respect, personal dignity, privacy, and emotional wellbeing are contrary to Provision 1.4 of the ANA Code of Ethics which states, “The limitation of individual rights must always be considered a serious departure from the standard of care, justified only when there are no other restrictive means available . . .” Similarly, Provision 2.1 requires that “nurses help to resolve [conflict].” Both of these ethical precepts would have been easily satisfied were the nurse to have opted for any number of less restrictive options once I objected to her surveillance.Your second “argument” doesn’t appear to be an argument but an assertion that requires an argument. The clinic, in fact, had no written policy that specifically required a patient who had to urinate to do so while a nurse watched. What they gave me was a copy of the fall prevention training manual in which it was stated, “ALWAYS be by the patient when they are dressing or standing to move positions after being sedated – your back should never be turned to the patient.” Such a statement is consistent with what you indicated your experience with healthcare organizations has been (and mine as well). But surely this statement cannot be interpreted as meaning that the nurse is permitted to deviate from her training by not assuming the correct posture for steadying a patient. Given the posture she did take, it is quite clear to me that she either forgot her fall prevention training or her intent was something other than to protect me and the facility. Although the nurse did not violate the “policy” of “ALWAYS be by the patient,” she did violate the proper protocol for steadying a patient; she followed policy, but violated practice.I did not opine “that no harm has to be proven for there to [be] a breach of ethics.” My point was that privacy breaches may be construed as being harmful in and of themselves and cited Shulman v. Group Productions. This case involved a privacy violation tort; ethics, per se, did not come into play in the decision. If a film crew enters my home without my consent, that intrusion is in and of itself harmful and tortious; I do not have to prove that I’ve been harmed in any other way to prevail in a suit against the film crew. That’s my understanding of case law decisions and the decisions by the U.S. Supreme Court (see, e.g., Wilson v. Lane). You responded by referencing the right of an employee (the nurse, in this case) to due process the rules for which must be precisely spelled out. I don’t see the connection.
Please do ask a couple of other experts. I’ll welcome their responses as I have yours, although I think we may have communicated at cross-purposes at times.A lawsuit is out of the question because my privacy was not subject to infringement since I refused to expose myself to her. Also, as I’ve mentioned twice, I’ve already filed and twice refiled a complaint with the State Board but received no reply, not even a note acknowledging receipt of the written complaints. Apparently, the Board responds only to complaints filed by nurses against nurses and healthcare facilities against nurses, the largest percent of which have to do with drug use.As an addendum, the facility in question used my grievance as an incentive to create a Code of Conduct document. Unfortunately, not a single code addresses, directly or indirectly, the propriety of watching patients over their objection perform excretory functions.
I will try to find another medium to get my ethics questions answered. If I do, I will get back to you with my findings, if you are interested. As for my opinion, whatever it is worth, my study, to date, suggests that informed consent is a hallmark of ethical practice and research and is addressed by ANA and AMA codes and by national and international documents on ethical conduct. CONTINUED
Customer: replied 10 months ago.
If informed consent is a valued ethical principle, then it is ethically incumbent on the facility in question to inform patients about any policy or practice that permits staff to vary from the norms of common decency and from patient rights promised them in the facility’s Patient Rights and Responsibilities and Code of Conduct documents so they can make an informed decision about whether or not to seek health care elsewhere. The facility has chosen not to take this step.Ray B.
Expert:  Dwayne B. replied 10 months ago.

I asked a couple of the others to take a look at this and see if they agree with my assessment. They'll check it when they get online.

Expert:  Dwayne B. replied 10 months ago.

I got a note that said at least one of the other experts had taken a look at the question and the answers and filed an "Agree". I don't know if the second one has done so or is online.

Best wishes to you and please don't forget to leave a Positive Rating so I receive credit for my work.