DATE: Monday, October 20, 1997              TAG: 9710170043

SECTION: LOCAL                   PAGE: B9   EDITION: FINAL 

TYPE: Opinion 

SOURCE: Ann Sjoerdsma

                                            LENGTH:   88 lines

MUTILATION CASE, PART II HEART IN HAND BEFORE, THIS TIME THE "LAWYERLY" APPROACH IT'S UNLIKELY THAT, BARRING SERIOUS COMPLICATIONS FROM SURGERY, ANYONE WOULD SUE A DOCTOR FOR TRYING TO SAVE HIS HAND.

When I last ventured into Norfolk's infamous severed-hand case (``Heart in hand, outcome of mutilation case is troubling,'' Sept. 22), I focused on common sense and compassion. I didn't want to be ``lawyerly.'' I asked you, not a lawyer or a doctor, to make the ``call.''

Do you reattach Thomas Passmore's right hand, to the best of your ability, after the psychotic man has withdrawn his consent for surgery? Or do you succumb to fear of a lawsuit and condemn the 30-year-old to life with a metal hook?

OK, so it's obvious where I come out.

I firmly believe the tragedy that befell both Passmore and the hand surgeon could - and should - have been avoided with a bit of common sense and compassion.

As you will recall, Passmore deliberately cut off his hand with a power saw at an Outer Banks construction site. He hallucinated, saw the numbers ``666'' on his hand, and believed this meant it was possessed by the devil.

When I wrote before, I was angry at people who smugly scoffed at Passmore's lamentable history of alcoholism, mental illness, homelessness and unemployment. Though I don't second-guess it, I think the jury's malpractice verdict in favor of the surgeon had a lot to do with dislike of Passmore.

Today, I'm going to be more lawyerly, more the problem-solver. I, too, think we're over-litigated; but the problem in this case wasn't the law. It was a lack of foresight.

As soon as Passmore and his hand arrived at Sentara Norfolk General Hospital from the Outer Banks, a responsible professional should have made this simple presumption: This man is not competent to give informed consent.

True, mental illness does not equal legal incompetency; Passmore may be able to appreciate the risks and benefits of surgery and its alternatives. But the facts raise a red flag. Something could go wrong with the consent. Now is the time to talk to the hospital's risk-management team, to a lawyer.

Why? Because the goal is to reattach the hand. At all costs. Reaching that goal may require ``substitute'' consent. Channels exist. But action needs to be taken quickly.

The surgeon requested a psychiatric consult - a reasonable first step - but then signed off. Had he alerted his legal problem-solvers, (1) a petition for an emergency court order could have been filed and an interim guardian appointed for Passmore.

(2) The hospital could have notified the Dept. of Social Services that Passmore might be a neglected ``incapacitated adult,'' and the agency might have taken custody of him.

(3) More of an effort could have been made to contact Passmore's next of kin, who could consent in his behalf. Workers at the construction site, for example, might have filled in some personal details.

I can think of other options, involving consulting physicians. The point is, I'm looking for a way to ensure that the surgery happens.

A first-year psychiatric resident (not the attending psychiatrist) diagnosed Passmore as manic-depressive with psychotic features and an alcohol dependence and secured his consent. Another resident then decided to tranquilize him. When Passmore changed his mind two hours later, en route to surgery, the medication alone threw his competency into doubt.

(Even Passmore's flip-flop could have been foreseen: A psychotic man who cuts off his hand because God told him to is not likely to be happy about getting it back.)

The panicked surgeon then talked to the attending psychiatrist, who advised him to contact risk management, who in turn suggested he call a circuit court judge. It was still not too late to get a court order over the phone.

But the surgeon told the judge that Passmore appeared competent - calm, rational - and asked him what would happen if he reattached the hand anyway. The judge reportedly advised that he could be held civilly liable for battery.

Technically this is true, but it's unlikely - common sense, again - that, barring serious complications from surgery, anyone would sue a doctor for trying to save his hand. (Damages?) And, as a hospital lawyer friend of mine said, once Passmore was stabilized, ``They can always cut it off again.''

I don't know what transpired in the surgeon's conversation with the judge. I don't know why the judge didn't try to help more than he appears to have. Or why the surgeon didn't have better legal counsel.

But this much I do know: The surgeon should have performed the operation. It's an emergency. He has to make a tough call, and he should err on the side of helping the patient. Call Passmore incompetent; do what's right. Be a healer. Let lawyers and insurance companies worry about lawsuits.

A month ago, I wrote that ``law should not trounce humanity.'' Neither should fear or ignorance of it. MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book

editor for The Virginian-Pilot.

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