Should EP Comply with Blood Draw Requested by Law Enforcement?
Court ruling affects EPs’ malpractice risks
In the April 2013 case of Missouri v. McNeely, the Supreme Court ruled that police must generally obtain a warrant before subjecting a drunk-driving suspect to a blood test.
"At the heart of the ruling, the Court rationalized that the natural dissipation of alcohol in the blood is generally not sufficient reason to jettison the requirement that police get a judge’s approval before drawing a blood sample," says Edward Monico, MD, JD, assistant professor in the Department of Emergency Medicine at Yale University School of Medicine in New Haven, CT.
In many states, drunk-driving suspects are typically escorted by police to local emergency departments (EDs) to procure blood samples for evidentiary reasons. "Therefore, emergency physicians will now be faced with the question of when to comply with a judicial request for blood," says Monico.
This underscores the necessity for emergency physicians (EPs) to be familiar with the law in their state, and to have a proactive plan established with the institution, legal department, and ED.
"It would be likely that a physician might be compelled to comply with a judicial order to obtain blood if that is, in fact, the law in the state," says Monico, adding that the institutional protocol should reference the state law.
"The best protection against medical malpractice is to practice good medicine," says Monico. Therefore, irrespective of the presence or absence of a warrant, if there is a medical reason to obtain blood that includes an alcohol level, the EP should obtain the blood. Documentation should reference the institutional protocol such as: " pursuant to judicial order and hospital protocol, a blood alcohol level was obtained."
If the patient’s capacity is at issue, the EP should do whatever it takes to keep the patient safe, says Monico. This may include obtaining blood against the patient’s will.
"Knowing the etiology of a patient’s altered mental status may foreseeably require an assessment of an alcohol level," he says. The EP could document, for example, that in the physician’s estimation, the patient is incapable of informed consent and does not have the capacity to make health care decisions at this moment in time.
Monico advises EPs to document that the etiology of a patient’s altered mental status includes the presence of a toxic substance and that blood analysis, in an effort to identify that substance, is indicated.
"The rubber meets the road when a patient with apparent capacity refuses blood draw in the face of a warrant demanding a blood sample be drawn," says Monico. "A reasonable approach would be for physicians to act under color of the warrant."
Monico says liability risks for EPs are greater if patients with apparent capacity refuse a blood draw when there is no warrant. In this instance, a court could rule that blood tests obtained in this scenario violate the Constitution’s prohibition against unreasonable searches and seizures.
"Emergency physicians can further protect themselves by putting in place protocols to follow that instruct health care providers on how to proceed when DUI suspects are brought to the ED by police," says Monico.
False Sense of Security
John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland, has reviewed a number of malpractice cases against EPs involving intoxicated patients who had an underlying traumatic injury that went undetected.
"Do not be dismissive of intoxicated patients. They still can have traumatic injuries or medical conditions," warns Tafuri. "A full and complete evaluation is mandatory."
EPs often "get numbed into a false sense of security with these patients," he says. "We all have that inclination to say, Oh, it’s just another drunk,’ but in fact, we need to have a high index of suspicion with these patients."
A recent malpractice claim involved an intoxicated patient who reported falling down, but did not complain of neck pain. "He was dismissed by the paramedics, but had a c-spine injury and ended up quadriplegic," says Tafuri.
For more information, contact:
- Edward Monico, MD, JD, Department of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. E-mail: firstname.lastname@example.org.
- John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216)
476-7312. E-mail: email@example.com.