ED Body Cavity Search?

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Coleman

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Recent article on EPs being "forced" to do a body cavity search on suspected drug dealers at San Francisco General. Interesting ethical debate.

(1/28/04) San Francisco Chronicle.
Robert Golomb MD
Berkeley, California

San Francisco has had some touchy police standoffs -- but nothing quite
like the 10-hour showdown that came to a head in the San Francisco
General emergency room between cops, doctors and a female drug suspect
who refused to surrender several rocks of crack cocaine she was
concealing in her very private parts.

Before it was all over, a doctor was herself being threatened with
arrest -- and the head of the city's Health Department was on his way
down to do the search himself.

It all started routinely enough in the wee hours Monday, when cops on a
stakeout spied the 20-year-old suspected dealer working the 2000 block
of Mission Street.

As they moved in to arrest her, the woman reached into her pants and a
batch of suspected cocaine disappeared.

The woman, who was already on probation for a drug offense, was
handcuffed and taken to the Mission District station, where a female
officer strip-searched her. The officer reported seeing "a shiny piece
of plastic slightly protruding'' from between the suspect's legs -- but
before the evidence could be seized, the woman pushed it out of sight
and refused to cooperate any further, according to the police report.

That's when the calls started flying -- first to the police narcotics
unit seeking advice, then to the county jail, where deputies said they
couldn't do anything until the woman was evaluated at San Francisco General.

And that's just where she was taken. And where she waited until 8:30
a.m., when the cops got a judge to sign a "body cavity search warrant.''

The problem was, nobody wanted to do it.

The attending physician refused to help, saying it wasn't a medical
emergency.

The intake nurse at the county jail said she couldn't do it because she
didn't have the equipment.

By now things are getting hot -- and Capt. Tim Hettrich, head of the
Police Department's narcotics detail, was called to the scene, telling
the attending doctor that the next step was going to be to get a judge's
order -- "and if you don't comply, we won't have any choice but to
arrest you.''

The warning -- delivered within earshot of patients -- sent tempers
flaring, according to witnesses, and soon everyone was hustling into a
conference room. Hospital higher-ups were brought in and Health
Department Director Dr. Mitch Katz was pulled out of a meeting to
consult by phone.

Even the suspect's probation officer was brought in to help.

By late morning -- after consultation with city lawyers -- the warring
parties reached a compromise.

If the suspect wouldn't cooperate, then Katz himself would come down to
the hospital and conduct the search. That way, none of the attending
physicians at S.F. General would be forced to compromise their
patient-client relationship.

A female physician was then assigned to sit down with the suspect to
explain the difficult circumstance she was facing.

At which point, according to the police report, she reached beneath a
blanket covering her legs and produced a plastic bag containing several
rocks of crack cocaine. With that, she was booked into the county jail.

End of crisis -- but hardly the end of the story. Hospital staffers are
still fuming over their treatment by the cops, with one insider telling
us Hettrich's behavior "was out of line, and his job should be reviewed.''

"There needs to be confidence in us, and if the emergency room becomes
known as a place where you get body cavity-searched and strip-searched,
then patients are not going to trust us,'' said Dr. Alan Gelb, chief of
the Department of Emergency Services.

Hettrich insists the cops were only doing their jobs.

"Look, we were caught between a rock and hard place,'' the captain said.
"We have a felon selling drugs on the street and hiding drugs on her
body -- what am I to do?''

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As far as I am concerned a forced vaginal exam is assault. I would explain to the patient that unwrapped crack could be absorbed through mucous membranes and be life threatening and then assuming she seems competent have her sign an AMA form. At that point her medical "care" is finished. Every police department I've ever worked with had their own people to do body cavity searches and I've never been asked to do one on an unwilling patient.
 
We've been having a long and somewhat heated discussion over on emed-l on this article.

That and yet another rehashing of the AAEM vs. corporate medicine holy war is keeping the list busy as hell.
 
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Originally posted by Sessamoid
That and yet another rehashing of the AAEM vs. corporate medicine holy war is keeping the list busy as hell.

And don't forget to add entertaining. :)

Take care,
Jeff
 
Originally posted by ERMudPhud
As far as I am concerned a forced vaginal exam is assault. I would explain to the patient that unwrapped crack could be absorbed through mucous membranes and be life threatening and then assuming she seems competent have her sign an AMA form. At that point her medical "care" is finished. Every police department I've ever worked with had their own people to do body cavity searches and I've never been asked to do one on an unwilling patient.

First of all, I want to state that I would not do this without the patient's consent. I can tell you from a legal standpoint you could be arrested if a judge ordered you to do the exam. Obviously, the DA wouldn't prosecute you for assult. The real question is whether you could be successfully sued in civil court for this. I don't know the answer -- I'll have to look it up.

Ed
 
Could you put up a link for the "emed-I" sight you referenced?

Thanks.
 
This is a tough one. I've run into similar though not as severe problems with cops wanting us to run etoh and drug screens on patients.
I would not do the exam against the patient's wishes. I would argue that while the judge could threaten to have me arrested the patient certainly could sue me. As an ER doc my patient and I enjoy privlidged confidentiality just like a PCP. I would argue that a judge cannot draft me into the service of the court, force me to do a procedure against the wishes of a competent patient (even one in custody) and if I did do the exam the result would be confidential, between the patient and me. Since this is not an emergent procedure I would call the world, hospital admin, risk management, my lawyer, anyone I could get to get involved.
 
Originally posted by docB
I would argue that a judge cannot draft me into the service of the court, force me to do a procedure against the wishes of a competent patient (even one in custody) and if I did do the exam the result would be confidential, between the patient and me.

You could argue all you wanted, but a judge can issue an order for pretty much anything he or she wants. The problem is you may be sitting in the can for several days until an appeals court would review the case. If the judge tells the cops or the court officers to arrest you -- you're pretty much going away despite your protestations. Look at the bright side -- I'd be sitting there in jail with you.

Ed
 
Originally posted by edmadison
Look at the bright side -- I'd be sitting there in jail with you.

I suspect that you'd find yourself in a fairly crowded jail cell.

At the very least, there'd be the three of us. I think it is absolutely worth jail time to stand up for the physician-patient relationship and against authoritarian misuse of power.

As for the other question about emed-l, go to: http://www.lsoft.com/scripts/wl.exe?SL1=EMED-L&H=ITSSRV1.UCSF.EDU

Take care,
Jeff
 
Originally posted by Jeff698
I suspect that you'd find yourself in a fairly crowded jail cell.

At the very least, there'd be the three of us. I think it is absolutely worth jail time to stand up for the physician-patient relationship and against authoritarian misuse of power.

As for the other question about emed-l, go to: http://www.lsoft.com/scripts/wl.exe?SL1=EMED-L&H=ITSSRV1.UCSF.EDU

Take care,
Jeff

I don't think I go so far as characterizing the court order as "authoritarian misuse of power". I see it as an issue of autonomy which I would not chose to violate. If I were a physician employed by the state or county to work at the jail, I would have fewer reservations. Clearly, the law must provide a mechanism for medical procedures and certain searches to be carried out by qualified personnel in a timely manner, inspite of lack of consent. I just feel that those duties should be performed by someone who is employed by the government and who has thus agreed to work with patients outside the normal confines of the doctor-patient relationship, rather than some poor SOB working in the ED.

Ed
 
Originally posted by edmadison
I don't think I go so far as characterizing the court order as "authoritarian misuse of power".

I really do see it that way. Clearly it isn't an issue for a true agent of the state who has already agreed to contractual obligations with the government but I think it is for someone who has not.

Forcing a physician to perform medical procedures/exams which are, in the physician's opinion, not in the best interests of their patients is inappropriate. For someone in a position of power to attempt to coerce/force them to do this, IMHO, is a misuse of that power. The fact that this person is also a representative of the government makes this misuse an authoritarian one.

Take care,
Jeff
 
As a former police officer, I tend to relate more to the cops that come in. I tend to order the ETOH tests (you can always find a reason to draw bloods), and probably would have done the vaginal search based on 2 things. Firstly, the officers came with a warrant to do the search. Secondly, there is a foreign body with a potentially fatal toxic dose of cocaine lodged inside this person. Say you did not do this exam, and one of those bags had not been sealed well, or even punctured by her long fingernail as she pushed it in to her vaginal canal? Suddenly she crumps on you while you are in a testosterone battle with the police? I think that this is not good medicine. A similar incident happened aout a year ago in San Jose. An 18 yo kid arrested, did the body stuffer thing and was taken to the ER where the patient refused care. He proceeded to crump, and when he went unresponsive from VT, the docs finally started treating him. He ended up dying...Well, guess who is now getting sued?
Well, just my opinion. You 3 can sit in the jail cell and ponder this while I sleep comfortably in my own bed knowing that I helped take a criminal who is selling cocaine to kids (maybe your kid), or some drunk driver who may take out an innocent family, off the streets!
Mark
 
Originally posted by spyderdoc
As a former police officer, I tend to relate more to the cops that come in. I tend to order the ETOH tests (you can always find a reason to draw bloods), and probably would have done the vaginal search based on 2 things. Firstly, the officers came with a warrant to do the search. Secondly, there is a foreign body with a potentially fatal toxic dose of cocaine lodged inside this person. Say you did not do this exam, and one of those bags had not been sealed well, or even punctured by her long fingernail as she pushed it in to her vaginal canal? Suddenly she crumps on you while you are in a testosterone battle with the police? I think that this is not good medicine. A similar incident happened aout a year ago in San Jose. An 18 yo kid arrested, did the body stuffer thing and was taken to the ER where the patient refused care. He proceeded to crump, and when he went unresponsive from VT, the docs finally started treating him. He ended up dying...Well, guess who is now getting sued?
Well, just my opinion. You 3 can sit in the jail cell and ponder this while I sleep comfortably in my own bed knowing that I helped take a criminal who is selling cocaine to kids (maybe your kid), or some drunk driver who may take out an innocent family, off the streets!
Mark

I too am a former law enforcement officer, but my I quit my job -- perhaps you are still employeed with. As a physician NOT working for the government I would refuse to do it because it is unethical. If the patient needed blood draws for treatment I would draw the blood. But in the case described, the patient was brought in solely for the cavity search. It's a totally different situation.

If I worked as a prison doc, I wouldn't have any problem doing it because the nature of my relationship with my employer and my patients requires that the ethical tenet of patient autonomy no apply fully. Similarly, next year, when I work for the Army, I will be have to factor in the different nature of the physican-patient relationship and will act acordingly.

Ed
 
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Originally posted by spyderdoc
As a former police officer, I tend to relate more to the cops that come in. ...
Well, just my opinion. You 3 can sit in the jail cell and ponder this while I sleep comfortably in my own bed knowing that I helped take a criminal who is selling cocaine to kids (maybe your kid), or some drunk driver who may take out an innocent family, off the streets!
Mark

As a private doc I don't see how you can justify doing anything to a competent adult who refuses treatment. You wouldn't have any excuse ethically or legally if she files on you.
As for the cops, I was a firefighter for a long time and I had to work with cops day in and day out. I need more than one hand to count the times I was ordered off a scene so the cops could spend some private "quality time" with a suspect. I don't dislike law enforcement but if testosterone starts getting sprayed it's the cops that sprayed first. I know they feel they have to be in control at all times including dealing with non-criminal civilians (do they acknowledge such people?) but I can't always comply with their demands in my ER. I've had cops demand that I don't give pain meds (like lidocaine) to suspects and demand that I see thier charge first so they don't wait around when there are much sicker people that need me. Lately I've been getting a lot of grief when they come in for "med clearence." They don't want to wait. I've started telling them that they are here so I can assume the liability for their suspect. If they don't want to wait they are welcome to just take him to jail and shoulder the liability themselves. It doesn't surprise me at all that the cops first reaction to this situation was to try to coerce the ER doc to do the wrong thing. And the "We're just doing our job" chestnut, utter crap. Lots of badness has been whitewashed with that line.
 
OK, I did my homework on the issue of liability in this case. First, the easy case. If you were a prison doctor under these circumstances you would be protected from liability under the doctrine of "official immunity". This permits agents of the government to perform their lawful duties and not be subject to suit for those actions. The protects police from being sued for assault every time they peacefully arrest someone. Of course, there are limitations. The agent can't violate anyone's constitutional rights and the law has also developed specific torts which may apply in these cases: such as malicious prosection. The "official immunity" doctrine may be codified; that is, written into state law by the legislature, or it may rest on common law; written decisions by judges in the past.

So the hard case: what happens to the poor slub EP who is asked/told to do the search by the cops/judge. It is very likely that if the physician has been ordered to do the procedure and that procedure isn't clearly unlawful (no nurenberg defenses) that the doctrine would extend to cover the physician. This also assumes that the EP stays within the confines of the court order.

Ed
 
Originally posted by spyderdoc
As a former police officer, I tend to relate more to the cops that come in. I tend to order the ETOH tests <snip>

Perhaps you do, but this really doesn't address the situation at hand. If there were a medical reason to do the exam, of course I would do it. Similiarly, if the patient consented to the exam, I would do it (why, I'm not sure, the bag certainly went up there without physician assistance, I'm pretty sure it can come back out the same way).

Further, the question that interests me is not whether I would have legal coverage if I performed the exam under court order (certainly interesting, jut not the most interesting to me right now). I've been a paramedic for 13 years now and I try to assist my police colleagues as much as I can...right up to the point where doing so violates either medical ethics or the law.

The question that got me interested in this discussion to begin with is the one edmasidon identified. That is, whether, as a non-governmental physician, I can be compelled to act in a fashion not in my patient's best interest. I'm not sure about the legality of this but I suspect that a judge can issue a court order compelling me to do so. I also suspect he can hold me in contempt for not doing so.

After thinking about it for awhile, I decided I'd rather sit in jail for contempt than violate my ethical responsibility to my patients. Afterall, there are worse things than a jail cell. Like sitting at home knowing that I chose a soft bed over my fiduciary responsibility to my patient.

Take care,
Jeff
 
We had this discussion in an ethics conference earlier this year.

My own personal opinion is that I am an American citizen first and a doctor second, and that any professional ethics I might have are secondary to the laws of this country. As for being forced to do something against my beliefs, the law forces many people every day to perform duties against their beliefs - why should we feel that our profession makes us above the law?

The police and law enforcement officials protect me and my loved ones every day, and work to keep drug dealers and other assorted dangers off the streets. If I could help them in return and do my civic duty at the same time, I personally would be more than happy to do so.

And to be successfully sued, the perp would have to find a judge who prefers to support victims over law enforcement in unclear cases. Perhaps in a Rodney King type brutality case, that might be a possibility, but in a case where a physician is acting under compulsion as an agent of the state, I imagine that would be a long shot.
 
Originally posted by jpgreer13
And to be successfully sued, the perp would have to find a judge who prefers to support victims over law enforcement in unclear cases. Perhaps in a Rodney King type brutality case, that might be a possibility, but in a case where a physician is acting under compulsion as an agent of the state, I imagine that would be a long shot.

All she's got to do is convince a jury. 12 *****s. That's easy to find. I saw twice that during yesterday's shift. Or she could find 1 loud ***** and 11 weenies who go along with the *****. The point is that once your're in front of a jury you've already lost.

As for a judge compelling me to rape a patient (maybe there's another term for probing a woman's vagina against her will but I'll go with rape) when I'm her private doc, no way. It's exactly because I'm an American that I shouldn't be drafted to do such things against my will.

While a judge can compel me to write a check, forfiet property go to jail, etc. I think it would be a stretch for him to declare me an "official" who is working for the state. At that point who is paying me. I'm sure the court won't be paying my fee for the exam. Does the patient have to pay for an exam against her will? Or am I just working for free? Who is covering my malpractice? I'm sure my med mal coverage doesn't include working as the court's agent. I do know that if I am accused of sexual misconduct (like, for example, raping a suspect with a speculum without her consent) my med mal does NOT cover me.
 
It is one thing to hold her legs down and forceably insert the speculum but what if the pt puts her feet in the stirups, spreads her legs, and allows me to insert the speculum? Is she consenting to the exam?
 
Originally posted by edinOH
It is one thing to hold her legs down and forceably insert the speculum but what if the pt puts her feet in the stirups, spreads her legs, and allows me to insert the speculum? Is she consenting to the exam?

That's a good question. I've heard that it is considered implied consent for a patient to roll up his sleeve for an injection. I think I would ask the patient why she is consenting to the exam. If she says she wants it for medical reasons, fine. If she says she wants me to do the exam because she knows that the alternative is to be held down and examined by an official I might do it although I would still consider the exam to be confidential. If she tells me it is because she has no choice I would tell her that she does have a choice not to be examined by me. I would not want any ambiguity to exist in the interaction because, as I've said, I feel that if she files the private doc would have no defense.
 
Originally posted by edinOH
It is one thing to hold her legs down and forceably insert the speculum but what if the pt puts her feet in the stirups, spreads her legs, and allows me to insert the speculum? Is she consenting to the exam?

While I'm not sure it is an appropriate one, an analogy comes to mind. It has been argued, typically by the defendent, that if a women asks that her assailant wear a condom, it is consensual and, therefore, cannot be rape.

I would say that in the analogy, it clearly is an act of mitigation rather than consent. In the case at hand, I think it might be argued that the woman not actively fighting the exam might similarly be considered an act of harm reduction ("they're going to do it anyway, if I fight it'll just hurt more").

Food for thought.

Take care,
Jeff
 
Originally posted by Jeff698
While I'm not sure it is an appropriate one, an analogy comes to mind. It has been argued, typically by the defendent, that if a women asks that her assailant wear a condom, it is consensual and, therefore, cannot be rape.

I would say that in the analogy, it clearly is an act of mitigation rather than consent. In the case at hand, I think it might be argued that the woman not actively fighting the exam might similarly be considered an act of harm reduction ("they're going to do it anyway, if I fight it'll just hurt more").
Taking it to the extreme: Say you're kidnapped by a serial killer. Asking the killer to shoot you once in the head rather than torturing you for days on end could hardly be considered consent to being killed.
 
Originally posted by Sessamoid
Taking it to the extreme: Say you're kidnapped by a serial killer. Asking the killer to shoot you once in the head rather than torturing you for days on end could hardly be considered consent to being killed.

The serial killer would share a cell with Kevorkian for assisted suicide. :D
 
Originally posted by jpgreer13
We had this discussion in an ethics conference earlier this year.

My own personal opinion is that I am an American citizen first and a doctor second, and that any professional ethics I might have are secondary to the laws of this country. As for being forced to do something against my beliefs, the law forces many people every day to perform duties against their beliefs - why should we feel that our profession makes us above the law?
Respectfully, I couldn't disagree more. Maybe it's because I switched away from Crim as a major that I feel the opposite applies, and maybe it's vice-versa. But I believe that one of the very best things about being an American citizen is not having the luxury -- or the excuse -- of blind allegiance. I question, affirm, and maintain my rights, actively and continually, just as the framers of the Constitution intended.

Speaking of which, it and the Declaration of Independence have some awesome language. We hold these truths to be self-evident... endowed by their creator with certain inalienable rights. By their creator, not by the congress and not the judge, and not even the men and women whose work it is to protect and maintain the public order. I have huge respect for cops, but as a working medical professional and private citizen, I most definitely do not owe anything to the hardworking, perfectly reasonable person with the badge who is asking me to do something that is, if not illegal, wrong. And if it comes down to it, I'll sleep soundly enough on the cold jailhouse floor. :(

So my personal opinion is, it's exactly because I value my freedom so much, and want to honor it, that I'm able to do what's right within the clear ethical framework of my profession, period. I don't see a conflict between my dual roles as conscientious citizen and medical professional.

A fantastic ethical debate, though. I'd love to know more about the conference, and how the debate went there.
 
A shockingly similar story appeared on "ER" last night. Dr. Abby was the hero who talked the suspect into producing the baggie as the county's director of public health was on the way ... :p
 
jpgreer13 said:
We had this discussion in an ethics conference earlier this year.

My own personal opinion is that I am an American citizen first and a doctor second, and that any professional ethics I might have are secondary to the laws of this country. As for being forced to do something against my beliefs, the law forces many people every day to perform duties against their beliefs - why should we feel that our profession makes us above the law?

The police and law enforcement officials protect me and my loved ones every day, and work to keep drug dealers and other assorted dangers off the streets. If I could help them in return and do my civic duty at the same time, I personally would be more than happy to do so.

And to be successfully sued, the perp would have to find a judge who prefers to support victims over law enforcement in unclear cases. Perhaps in a Rodney King type brutality case, that might be a possibility, but in a case where a physician is acting under compulsion as an agent of the state, I imagine that would be a long shot.



Not much of a long shot. Patients recieve a patients bill of rights as well, which most hospitals utilize as a contract. An adult patient who is competent has every right to refuse treatment. Even if you explain what the risks are. However, the key to protecting yourself, if something bad happens, is documentation.

I personallywould not assault a patient by performing an exam that a patient has refused. And the courts have held this up. I think you might even be held before your state's liscensing board. It's really not such a tricky situation until the warrent comes in. But I would have sat in the jail cell with the SF docs.
 
As I was reading this story, I was in disbelief at the similarities in last night's tv show ER and this. Then I saw that it was from 8 months ago and figured ER the tv show got wind of the story and decided to make a (exact) version of their own...
 
As an MS(-1) I don't think I have any business posting on this thread; however I perform legal blood draws as a phlebotomist and sometimes have to take blood after the patient refuses. This is an assault any way you cut it...

At first I refused do a forced blood draw, but the cops play their games with you and try to entice you to do it anyway. I was not going to let them push me around. Then I heard the cops say to the suspect, "we will get your blood one way or another."

After some philosophical logic I decided that I would perform these draws because someone, less professional then myself, will end up forcing blood out of this person. It usually takes several officers to hold them down, one butterfly, and I am done... no mess... no scar.

1) Don't let the cops play their games on you; they don't really mean to take you to jail.

2) If you must... do it with kindness!
 
shaggybill said:
As I was reading this story, I was in disbelief at the similarities in last night's tv show ER and this. Then I saw that it was from 8 months ago and figured ER the tv show got wind of the story and decided to make a (exact) version of their own...
Actually, the writers of the show seem very in touch with the issues surrounding the practice of medicine today. It's not unusual for them to take interesting medical or legal cases from the news and work them into the show.
 
DrB said:
As an MS(-1) I don't think I have any business posting on this thread; however I perform legal blood draws as a phlebotomist and sometimes have to take blood after the patient refuses. This is an assault any way you cut it...

At first I refused do a forced blood draw, but the cops play their games with you and try to entice you to do it anyway. I was not going to let them push me around. Then I heard the cops say to the suspect, "we will get your blood one way or another."

After some philosophical logic I decided that I would perform these draws because someone, less professional then myself, will end up forcing blood out of this person. It usually takes several officers to hold them down, one butterfly, and I am done... no mess... no scar.

1) Don?t let the cops play their games on you; they don't really mean to take you to jail.

2) If you must... do it with kindness!

The way that this is really supposed to work is that if the police are taking blood or demanding an exam against the person's will they should provide their own phlebotomist or examiner.
 
docB said:
The way that this is really supposed to work is that if the police are taking blood or demanding an exam against the person's will they should provide their own phlebotomist or examiner.

Exactly. I mentioned the same thing on a similar thread (sorry, should be studying ID otherwise I would find it), and someone else pointed out other problems with this, such as where this health care provider would actually practice (not having priviledges, etc). I still think there could (and ought to be) a legal workaround to avoid the obvious conflict of interest for a community physician.
 
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