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Law enforcement requests for blood alcohol levels are legally complex for ED providers. A Supreme Court ruling states no warrant is needed to draw blood from unconscious patients suspected of driving intoxicated. Some legally protective practices for EPs:
Police bring in an unconscious man suspected of driving intoxicated, and ask the ED nurse to draw a blood alcohol level. In this not-uncommon scenario, no warrant is necessary, according to a recent Supreme Court ruling.1
“If the patient is unable to submit or refuse because they are unconscious, controversy then arises. Perhaps the recent Supreme Court decision will resolve much of this controversy,” says James F. Holmes, MD, MPH, professor and vice chair for research at UC Davis School of Medicine’s department of emergency medicine.
The Supreme Court ruling “certainly provides more power for the ED physician to draw blood alcohol levels in unconscious patients,” Holmes says. However, the same does not apply to drawing blood from the conscious patient who refuses, Holmes warns: “Doing this could definitely get the provider in trouble.”
It always is possible that a patient, whether conscious or unconscious at the time of the blood draw, could file a complaint and trigger a police investigation. “But it would be hard for me to believe that a district attorney, who wants the blood to prosecute the patient, would also prosecute the ED provider who drew that blood at the request of the police,” Holmes offers.
The patient or family also could file a civil lawsuit against the ED provider who drew the blood. “Again, it would be hard to believe that a jury would find against a provider who followed state law, hospital policy, and a police officer’s request, especially after the Supreme Court ruling,” Holmes adds.
In his experience, Robert B. Takla, MD, MBA, FACEP, says requests for blood draws arise under three scenarios:
• Law enforcement wants the results on a patient who already is undergoing treatment in the ED. Sometimes, the emergency physician (EP) already ordered a blood alcohol level for clinical reasons.
“In this situation, we do not release the results to police, the prosecuting attorney, or any other person unless the patient gives consent to do so or a court order is provided,” says Takla, medical director and chief of the emergency center at Ascension St. John Hospital in Detroit.
• Law enforcement wants the results, but the EP did not order it as part of the patient’s workup because the EP did not believe it was clinically necessary. “This situation also requires either the patient’s consent or a court order,” Takla explains.
• Law enforcement brings an individual in specifically requesting that ED providers draw that individual’s blood for testing. “Again, it requires either consent or a court order,” Takla adds.
There also are times when the patient does not consent, and police have a court order. “If the individual is cooperative, it is easy. We draw the blood,” Takla says.
If the patient physically resists, the specimen is obtained with the assistance of police providing reasonable force in restraining the individual. “If in the process of applying force, it appears excessive or is injuring the patient, we would direct the police to desist,” Takla says.
In a now-infamous 2017 case, an ED nurse in Utah was handcuffed for following hospital policy and refusing to draw blood on an unconscious patient. (Editor’s Note: For an in-depth series of articles on this unfortunate episode, please read the November 2017 issue of our sister publication, Healthcare Risk Management, on our website at: .)
“On the flip side, when the ED provider does it without patient consent, then the ED provider can be sued for battery. It’s really a balancing act,” says Wakaba Tessier, JD, a partner in the Kansas City, MO, office of Husch Blackwell, who co-authored a recent paper on this topic.2
Tessier advises hospital clients to secure the patient’s consent to the extent possible before drawing blood, despite the recent Supreme Court ruling. “This case will not stop the patient or families from suing the hospital,” Tessier cautions. It does provide one argument for the hospital to use in the event litigation arises, adds Tessier, “but it certainly does not dictate definitively what hospitals should do.”
Roughly half of intoxicated drivers who present to an ED after a motor vehicle collision receive a DUI conviction, according to the authors of a study.3 “This protection from prosecution unlikely is in the public’s best interest,” says Holmes, the study’s lead author.
Most people, EPs included, would agree that intoxicated drivers who kill innocent people should go to jail. “But we are obligated to care for patients, not serve as law enforcement agents,” says Corey M. Slovis, MD, FACP, FACEP, FAAEM, professor and chairman of the department of emergency medicine at Vanderbilt University Medical Center.
“Patients have rights, regardless of the suffering, damage, or deaths they have caused,” says Slovis, who believes EPs should not draw blood unless the patient agrees to it or there is a legally binding court order to do so. “Because most of us are not lawyers, it usually is best to wait until a hospital attorney confirms that the police officer’s document is in fact is a court-ordered evidence request that should be honored.”
The Supreme Court ruling clearly states that unconscious patients do not need to consent to a police officer-requested blood draw. Regardless, Slovis says EPs should either rely on a hospital policy or request hospital legal assistance. “Otherwise I still worry about a dammed if you do and dammed if you don’t kind of situation,” Slovis says.
A simple, well-written policy known to hospital staff and law enforcement avoids most conflicts. Still, says Slovis, “when in doubt, wait for definitive guidance from someone whose job it is to protect you.”
Holmes says it is unlikely the plaintiff in a malpractice case would be able to prove the ED provider or hospital failed to meet the standard of care by drawing the unconscious patient’s blood per law enforcement’s request. It also is highly unlikely that a district attorney would prosecute the ED provider for battery. “Thus, the likelihood that the provider would be drawn into legal action for obtaining blood in the unconscious patient for legal purposes is low,” Holmes offers.
Generally, neither courts nor the public consider measuring a blood alcohol level on an intoxicated driver as an unreasonable search and seizure, notes Rade Vukmir, MD, JD, FCCP, FACEP, FACHE, president of Critical Care Medicine Associates and clinical professor of emergency medicine at Temple and Drexel Universities.
Even before the recent Supreme Court ruling, more than half of states already had enacted statutes stating that drivers do not have the right to refuse a blood draw in this circumstance. Many vehemently object, and some threaten to sue. “But it usually gets done,” Vukmir adds.
Usually, any trauma patient would undergo a drug and alcohol screen as part of the ED assessment. “Law enforcement can then subpoena the results,” Vukmir notes.
More problematic, at least in the eyes of ED providers, is when law enforcement brings the patient to the ED for the express purpose of measuring the blood alcohol level. “It isn’t something to be decided on a case-by-case basis or handled differently at 2 a.m. vs. 9 a.m.,” Vukmir notes. “The more it’s spelled out in advance and not in the heat of the moment, the better for all involved.”
The Supreme Court ruling specified that there is an exigent circumstances exception to a warrant requirement. “Everyone would generally understand that when a patient presents in a potentially life- or limb-threatening situation for themselves or others, it’s a time-sensitive analysis,” Vukmir explains.
ED providers still worry about legal exposure drawing blood from an unconsenting patient. “This is so complicated it had to go to the Supreme Court,” Vukmir notes. “If it’s that complicated, you should have a policy in place to deal with it.” ED providers “are not the final arbiter of this,” he adds. “If there is a dispute, it should be referred to the onsite risk manager, and potentially the hospital attorney, for rapid resolution.”
Risk managers must determine if the request is a lawful one, says Rafael Villalobos, Jr., JD, attorney at Buchanan Ingersoll & Rooney. If a law enforcement officer believes a patient is under the influence, observed a patient operating a motor vehicle, and the patient now is unconscious, ED providers would be within their rights to perform a blood draw and share it with law enforcement. “It would be appropriate to nonetheless request that law enforcement provide a warrant,” Villalobos suggests.
This would provide additional protection to ED providers and the hospital. If law enforcement says there is no time and that the evidence is literally dissipating by the minute, Villalobos says EPs should document the name of the officer involved, names of any witnesses present, and specifics on the representation made by law enforcement related to exigent circumstances. “This provides optimal protection for the providers involved,” Villalobos adds.
Financial Disclosure: Kay Ball, PhD, RN, CNOR, CMLSO, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jill Drachenberg (Editor), Leslie Coplin (Editorial Group Manager), and Amy M. Johnson, MSN, RN, CPN (Accreditations Manager).