EXECUTIVE SUMMARY

A nurse was arrested for refusing a police detective’s demand to draw blood from an unconscious patient. Fallout from the incident is leading to changes at the hospital and within the police department.

• Hospital police and security guards facilitated the arrest.

• The nurse was following hospital policy, which complied with state law.

• The hospital and police department may be sued by the nurse.


The highly publicized arrest of a Utah nurse for refusing to allow a police request to draw blood on an unconscious patient drew attention to how hospital policies and procedures should protect staff in such confrontations, and particularly the role that in-house police and security officers should play.

One of the most disturbing parts of the incident — which included many shocking components — was the apparent cooperation of the hospital police and security officers in the nurse’s arrest. Professionals in the healthcare, legal, and security industries agree that the actions of hospital security were troubling, as they facilitated the arrest after the nurse called them to protect her from what she perceived as a threatening and irrational local police detective.

Alex Wubbels, RN, is a charge nurse at the University of Utah Hospital in Salt Lake City who was overseeing a patient who had been brought to her ward unconscious following a police chase that ended in a collision. The man being chased by the police died. The patient was a commercial truck driver whose vehicle was struck by the fleeing driver.

After the patient was transferred to Wubbels’ unit with extensive burns, Salt Lake City police detective Jeff Payne arrived with a request for staff to draw blood from the patient, or to do it himself. Payne worked off duty as a paramedic and was authorized by the police department to draw blood for investigations.

Wubbels explained that she could not allow the blood draw without a warrant or the patient’s permission. The detective insisted, even after Wubbels cited hospital policy and Utah state law supporting her position. After almost an hour of waiting, Payne suddenly arrested Wubbels. He grabbed her and dragged her out of the hospital as she cried and begged for help. (See the story in this issue for details on the arrest and the video recording.)

Detective Threatens Retaliation

As Wubbels sat handcuffed in a police car for 20 minutes in the July heat of Utah with no air conditioning, Payne’s bodycam shows him remarking to another officer that he could retaliate against the hospital in his part-time job as a paramedic. “I’ll bring them all the transients and take good patients elsewhere,” Payne says in the footage.

The ambulance company fired Payne for those comments. Payne and his supervisor, who had authorized the arrest and arrived on the scene after Wubbels was handcuffed to tell her she deserved the arrest, were put on administrative leave. Two investigations yielded scathing criticism of their behavior. In October, the police department fired Payne and demoted his supervisor. (See the story in this issue for more on the results of the police investigations.)

Wubbels was released at the hospital and not charged. The patient at the center of the dispute died from severe burns. The police explained during the incident and afterward that he was the victim of a crime, not suspected of any wrongdoing, and they were seeking the blood test to protect him by proving he was not under the influence at the time he was hit by the person fleeing police. Federal regulations for commercial truck drivers require post-accident testing for impairment in serious accidents, even when the driver is not at fault. The patient also was a reserve police officer in Idaho.

University of Utah Hospital issued statements supporting Wubbels and standing by the hospital’s policies on complying with law enforcement requests for blood draws. The hospital also announced immediately after the arrest that police officers were barred from patient care areas and that nurses would no longer deal directly with law enforcement.

“The hospital supported her wholeheartedly and is proud of her actions to put her patient’s care and well-being first,” says spokesperson Suzanne Winchester.

Intervention by hospital administration secured Wubbels’ release 20 minutes after she was taken into custody. Both risk management and hospital customer service were made aware of what had taken place immediately following the incident. In the 24 hours following the incident, top administrators were informed about what happened and offered Wubbels their support, Winchester says. Several hospital administrators viewed surveillance video of what had occurred and contacted university police. A meeting was arranged involving hospital administration, university police, the Salt Lake City police, and the university’s general counsel.

Role of Hospital Security Questioned

The Wubbels arrest highlights the difficulty of cooperating with law enforcement while also protecting patients and complying with the law, showing that even when the hospital puts proper policies and procedures in place, the confrontation can turn ugly. In this instance, the role of hospital security is under particular scrutiny.

The university police clearly deferred to the city police officers instead of taking any action to protect the nurse.

As Wubbels sat handcuffed in a police car, Payne’s bodycam video shows him commenting to another officer about the response by hospital security: “The officer and security showed up and said, ‘We can’t stop him. We’re not going to get involved.’”

The officer says the hospital police officer did the right thing. Payne replied, “He did. He did it the correct way, which is how I would do it if he were arresting someone in Salt Lake City. I’d stand there and say, ‘What do you want me to do?’ And then I physically drug her out of the ER.” (Excerpts from Payne’s bodycam are available online at: http://bit.ly/2kooBC9.)

Hospital May Be Sued

Wubbels may sue both the police department and the hospital over the experience, says Wubbels’ attorney Karra J. Porter, JD, with the law firm of Christensen & Jensen in Salt Lake City. The arrest garnered so much attention and outrage after the video went viral that many people are encouraging Wubbels to sue, she says.

Porter notes that Wubbels received a handwritten letter from the police chief in Rigby, ID, where the patient worked as a reserve police officer, thanking Wubbels for protecting the rights of her patient.

“I’ve heard from many, many law enforcement officers who were upset by this,” Porter says. “It’s consistent to be pro-law enforcement and still be outraged by what happened. But I’m equally outraged, if not more, by the conduct of the hospital personnel and administration. I find that to be almost more outrageous.”

Wubbels would sue the hospital and its owner, the University of Utah, specifically for the actions of the hospital police and security officers, Porter says.

“The hospital security and university police facilitated this and they’re probably going to get sued over it if they don’t work out an amicable resolution,” Porter says. “They actually facilitated the unlawful arrest. They did nothing to intervene, not even to de-escalate this. They could have said, ‘No one is going to arrest an employee of our hospital until hospital administration gets here,’ and administration was on the way down.”

The University of Utah Department of Public safety includes 27 full-time sworn police officers, one reserve police officer, and 28 security officers, according to the university website.

“Alex called hospital security and said, ‘Could you please protect me? This officer is threatening to arrest me,’ and the hospital police and security said they couldn’t do anything, and if he wanted to arrest her they were going to let him,” Porter says. “When she was trying to back away, the person who stops her so the city police officer can take her and arrest her, that’s a hospital police officer. He impedes her path and directly facilitates her illegal arrest, and that’s why he’s now a potential defendant.”

In addition, another hospital security officer pushed the door open button to aid the city police detective manhandling the nurse to the hospital exit. Porter calls that affirmative action to aid the detective “appalling,” an opinion echoed by others.

The nurse did exactly the right thing, following policy and maintaining her composure in a stressful situation, says Gordon Lee Gillespie, PhD, DNP, RN, CEN, CNE, CPEN, PHCNS-BC, FAEN, FAAN, associate professor and deputy director of the Occupational Health Nursing Program at the University of Cincinnati. He calls Wubbels a hero. However, the university police and security guards failed miserably, he says.

“If that had been a patient dragging her out, a mental health patient or otherwise, would we have just stood there or would we have called for help, blocked the exits, done anything nonviolent to hamper him dragging her out of the hospital?” Gillespie asks. “You don’t punch the door open button. You can stand in front of it to slow the guy down, or you can go on lockdown with 10 people standing in front of every exit. The officer will have to tell them to get out of the way, and you slow that person down long enough for someone to intervene, or to let him realize what he’s doing is wrong.”

Porter emphasizes that the university police are sworn officers who have not only the authority, but the duty to step in and prohibit an illegal arrest or other unlawful action by another police officer. They are not in any way a lesser authority than the Salt Lake City police, she says.

“Clearly, they should have intervened, and I mean before the detective started lunging at her,” Porter says. “Apparently, it was their own policy to completely defer to any outside law enforcement that steps on their property. It’s odd, it violates the Constitution, and it’s what gets them sued because law enforcement officers have a duty to intervene when they see unconstitutional acts taking place.”

Gillespie and Porter agree that clinicians and other bystanders should not physically intervene when a police officer is arresting someone, even when the arrest is unlawful. Doing so would be dangerous and illegal, greatly escalating the situation. But other police officers are a different matter, Porter says.

“They can step in and stop it, and they have a duty to do so,” Porter says.

Even if the hospital does not employ sworn police officers, or the non-sworn security guards are the only ones present at the time, the guards still should stand up for the hospital employee and insist that the police wait until hospital administration can arrive and sort out the dispute, Porter says. If the risk manager cannot directly write hospital policies regarding security, he or she should work closely with the director of security to influence those policies, Porter says.

If the same situation occurred in his hospital, Martin Green, CHPA, manager of security, telecommunications, and emergency preparedness at Baycrest Health Sciences hospital in Toronto, says he would have stepped up and intervened. Green also is president of the International Association for Healthcare Security and Safety (IAHSS), an organization for security and safety professionals in healthcare facilities.

There is no question that the nurse should not have been arrested, he says.

“We don’t know the whole story just from watching the video, but if it happened in my hospital I think I would step forward and ask the officer to slow down and regroup a bit. This wasn’t a situation where what he wanted to do had to happen this second,” Green says. “I think he just got tired of debating and losing the argument, and decided to act inappropriately. It looked to me like the police officer was having a temper tantrum.”

Police officers usually are reluctant to interfere with officers from another agency or jurisdiction, Green says, and that may explain the actions of the university police. They probably felt a spirit of camaraderie with the city police, more so than with the hospital staff, he says.

Green encourages hospital leaders and security officials to meet with local law enforcement and establish relationships that might help avoid such incidents, or at least provide possible solutions when confrontations develop.

“I’ve been in situations where I disagreed with law enforcement and I was threatened with arrest,” Green says. “But I was able to tell them that before they arrest me, maybe they should call up Superintendent Smith and have a little chat with him and see if you really want to go ahead and arrest me.”

Hospital and Nurse Acted Appropriately

The nurse and the hospital acted appropriately in refusing to comply with the requests and demands of the police officer without the appropriate authority to do so, says William Hopkins, JD, partner in the Shackelford law firm in Austin, TX. As healthcare providers, the hospital and the nurse have a heightened burden to protect the privacy of the patient who is vulnerable and under their care, he says. Since HIPAA violations are based on the release and failure to protect the information, the police were seeking to push the hospital and nurse to violate HIPAA and the patient’s civil rights, he says.

“Based on what could be seen in the video, it appears that the nurse acted totally appropriately and professionally the entire time that she was dealing with the police. She took the information that the police were providing her and responded to their requests by not only telling them and showing them the policies and the law that was driving her position, she made multiple requests to them to provide her with a way that she could comply with them, without violating the policy of the hospital and the law,” Hopkins says. “She did not tell them, ‘No.’ She told them, ‘Give me a way to say yes to you.’”

The risk to the nurse and the hospital would have been significant if she complied with the police request to avoid arrest, Hopkins says.

“If the nurse had violated her facility policy and the requirements of HIPAA, she would have clearly violated the standards of practice for a nurse and would have personally subjected herself to having her license referred to her nursing board, she could have been sued by the patient for invasion of privacy, HIPAA violations, and she could have been prosecuted for assault,” Hopkins says. “The hospital would have also been subject to a lawsuit for violation of the patient’s civil rights and invasion of privacy. Depending on how the hospital is certified, it could have also subjected itself to potential licensure violations at the state level or at The Joint Commission level as well.”

Hopkins commends University of Utah Hospital for establishing the proper policy reflecting state law, one that apparently was vetted by the local police department. The only failing he saw involved the hospital police and security guards.

“The nurse not only had the policy handy, she was also talking to the hospital attorney on the phone seeking advice regarding how to handle the situation. I don’t think there is much else that the nurse could have done,” he says. “It was interesting that the hospital security guards did not feel a need to involve themselves in the process, given that all of this was happening on the hospital grounds, which is their jurisdiction.”

Hospitals face a daily challenge of cooperating with police investigations while adhering to the law and protecting staff, Hopkins says. They have to strike a balance between assisting law enforcement with their job and protecting their patients.

In this case, it is apparent that the nurse wanted to cooperate with the police, and made that desire to cooperate quite clear, but they refused to understand that they had not given her any ability to cooperate with them, he says. When she provided the police officers with the policy requirements, the police should have stepped away, fulfilled one of the requirements to satisfy the policy, and then taken their blood sample.

“Instead, it appears the police sought to use coercion and force to circumvent the law, the policy, and the privacy requirements. It is arguable that the police did not care if the patient’s privacy was being violated if they were not drawing the blood and the nurse was doing it,” Hopkins says. “They could have turned on the nurse later and stated that if it was against the hospital policy to draw the blood, then she should not have done it. They were merely using her to get what they wanted and clearly did not care about the potential ramifications to the nurse or the hospital.”

Hospital risk managers and administrators from several hospitals have contacted Diane Robben, JD, shareholder with the law firm of Sandberg, Phoenix & Von Gontard in St. Louis, seeking guidance after seeing video of the Utah incident. She tells them the nurse acted appropriately and they must encourage their own clinicians to stand their ground when adhering to the law.

“We’re advising some of our hospitals to beef up their policies so that when they’re forced into these situations, they have a good policy to rely on. That doesn’t mean it makes these problems go away, but it’s a starting point and gives your staff some support,” she says. “This has caused a ripple in the healthcare system and a lot of people are wondering what would have happened at their own hospital. They want to at least have a solid policy in place that is compliant with the law and provides the appropriate protection to the patient and the hospital staff.”

Wubbels has received an outpouring of support from nurses and other healthcare professionals, Porter says, with many of the messages suggesting others fear the same sort of incident could happen to them. They also suggest that many clinicians are not confident that their hospitals would protect them, she says.

“I think there is more concern by nurses about whether their hospitals are really committed to protecting them, than we knew,” Porter says. “I’m not sure they really knew they had that concern until they saw this video and how hospital security betrayed Alex. That’s what Alex says, that her own security betrayed her when she looked to them to protect her.”

SOURCES

• Gordon Lee Gillespie, PhD, DNP, RN, CEN, CNE, CPEN, PHCNS-BC, FAEN, FAAN, Associate Professor, Deputy Director, Occupational Health Nursing Program, University of Cincinnati. Phone: (513) 558-5236. Email: gordon.gillespie@uc.edu.

• William Hopkins, JD, Partner, Shackelford, Austin, TX. Phone: (512) 469-0900. Email: bhopkins@shackelfordlaw.net.

• Karra J. Porter, JD, Christensen & Jensen, Salt Lake City. Phone: (801) 323-5000. Email: karra.porter@chrisjen.com.

• Diane Robben, JD, Shareholder, Sandberg, Phoenix & Von Gontard, St. Louis. Phone: (314) 446-4274. Email: drobben@sandbergphoenix.com.