Med/Legal: EP says no to blood draw, goes briefly to jail

[Febrifuge]

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A staff physician at Hennepin refused to draw blood on a patient who was in police custody. The MPD had good reasons for wanting it; Dr. Martel had good reasons for saying no. It's a mix of conflicting objectives, policies, and a little wild card called HIPAA.

http://www.duluthsuperior.com/mld/duluthsuperior/news/local/9429956.htm

I rember from my crim days, in 1966 the US Supreme Court said it was okay to draw blood from a patient in custody -- there's a principle of "evanescent evidence," where if something (i.e., a BAL) is going to change or go away with time, it's fair game for collection as evidence. Sort of like how the cops can come into your house without a warrant, if they're in hot pursuit of a suspect.

On the other hand, HIPAA and the policy of the hospital as it is currently understood say that the ED needs written authorization/orders from the Court.

The police have decided not to pursue obstruction of justice charges against the EP http://www.startribune.com/stories/462/4933399.html

Rock, hard place. Discuss.

 

[VienneseWaltz]

I am puzzled by this on several levels ... while the police may have had a right to get the blood drawn, surely they can't pull a random physician off the street and effectively make him an investigator in the case. Aren't there physicians on the force who can draw blood for them, or at least phlebotomists? These people would not have the same conflict of interest that a local EP would have. And if there was a question of privacy, why didn't someone get the HIPAA compliance officer out of bed to figure out whether the doc was allowed to draw the blood? And how exactly does this hurt the case? It's not a DUI. The guy's BAL doesn't change the fact that he stabbed someone. If you can get off a murder charge by claiming "extreme drunkenness," as the article suggests, I don't want to live in THAT state ... Reading between the lines, it sounds as if the situation escalated into a power struggle rather than either side trying to find a livable solution.

 

[Febrifuge]

VW, those are good questions all... I think the concern on the Blue side is legitimate. A crafty defense lawyer could claim the defendant was so intoxicated that the ability to satisfy the M'Naughten rule (person knew what they were doing; person was aware of the likely consequences of their actions; person was able to distinguish right from wrong) was compromised. "He meant to hit the guy, not stab him; he was just trying to scare him; he forgot the knife was in his own hand," stuff like that. Pretty lame here, but maybe not always. And I'm fairly sure that any of the 50 states would have a similar standard. I'll ask my lawyer friend tonight at dinner.

But still, if hospital policy and HIPAA tell me I need to see it on paper, I need to see it on paper. Sorry, officer. Few things are more meaningful to me than our excellent working relationship, but this is one of 'em.

I agree, it would solve a lot of problems if the cops could roll in with their own court-appointed physician, but that would need to be someone who somehow has privileges at any and every hospital in the city or county, and who can become some specially-designated care provider on that patient's chart, in terms of malpractice and billing. I'll leave it to the EPs in the room to say whether there is enough money in the world for that job...

 

[VienneseWaltz]

I guess I've been watching too much Law & Order ... I was thinking that something like a blood draw could be handled with a lesser degree of hassle, therefore a law-enforcement phlebotomist could do it ...

Why didn't the suspect have a lawyer already? The lawyer would have told the guy to consent (right?), as it's obviously in HIS interest (NOT the state's) to have an early, accurate BAL. And does it really take 5 hours to get a written court order together? Seems like if the judge was already out of bed to make the phone call, she could have written something up and had an officer speed it to the hospital ... the whole thing is odd. It just seems like there must have been an option short of arresting the doctor. I should ask my ex-cop classmate about this, see what she knows about the process.

Anyway, I agree with you Feb--I think the doc was right to wait for the written order.

 

[docB]

We had a discussion about this here a couple of months ago. My opinion was that I'd hod out and get arrested because in the light of day I'd be more defensible for that than for doing something that was not medically indicated and possibly against the pt.

 

[Febrifuge]

Yeah, I remember that discussion. Maybe someone less lazy than I can find a link?

I thought it was particularly interesting, given that we talked about it here, to see an ethics problem play out in life like that. And impressive to see a doc follow it through to the point of jail, even.

 

[A little elf]

As a resident at HCMC, my only regret is that I wasn't working that night, cause I probably would have went to the slammer too. I'm not going to generalize, but some members of the law enforcement team think that they can strongarm anyone and get whatever they want, whether it's right or not. No backing down from here on in, my friends... 😡

Elfman

 

[docB]

The other thread was "ED body cavity search" by Coleman. I've bumped it.

 

[VienneseWaltz]

The other thread was "ED body cavity search" by Coleman. I've bumped it.

Very good discussion, thanks.