There are very few cases that directly address the emergency exception. It usually is only discussed indirectly in cases that really involve failure of informed consent. Because these cases do not involve emergency treatment facts, the judges usually present the emergency exception as only applying when the patient is incompetent and in need of treatment to save his or her life or to prevent permanent disability. Although this is a correct statement of the law, the actual application of the emergency exception includes procedures to determine whether the patient might need medical care. For example, one of the few cases to directly litigate the emergency exception involved a very drunk patient (blood alcohol of .233%) who was brought into the emergency room after an automobile accident.

Based on the patient’s complaints, the nature of the accident, and the physical examination, the emergency room physician decided to do a diagnostic peritoneal lavage. The patient asked what was going to be done, and when told, became belligerent and tried to leave the emergency room. The patient was restrained and sedated, and the procedure performed. The patient later sued for battery and failure of informed consent. The trial court would not allow the defendant hospital to assert the emergency exception as a defense. After an excellent review of the emergency exception doctrine, the Rhode Island Supreme Court found that this was an appropriate use of the emergency exception. [Miller v. Rhode Island Hosp., 625 A.2d 778 (R.I. 1993).] This comports with the usual emergency room practice of evaluating all patients who are unable to consent to determine if they are in need of emergency care. It is not unusual for patients, especially drunks, to fight the evaluation. It is likely that if the emergency room let a very drunken and potentially seriously injured patient leave without evaluation, and that patient died from lack of care, the emergency room would be sued for failing to restrain the patient.