Executive Summary
A recent U.S. Supreme Court ruling that police generally must obtain a warrant before subjecting a drunken-driving suspect to a blood alcohol test has important malpractice implications for physicians.
Physicians have exposure to a battery claim if they conduct a blood alcohol test without consent or a warrant.
Consent or a warrant does not immunize a physician from liability for performing the phlebotomy in a negligent manner.
Evidence that the physician was acting in the patient’s best interest can make claims including assault allegations more defensible.
In the April 2013 case of "Missouri v. McNeely," the Supreme Court ruled that police must generally obtain a warrant before subjecting a drunken-driving suspect to a blood test. This ruling has significant implications for physicians’ malpractice risks.
"If a physician draws blood from a person without consent or a warrant for the purpose of conducting a DUI blood alcohol test, it exposes the physician to a battery claim," says Douglas F. Ciolek, Esq., an attorney at Reiseman, Rosenberg, Jacobs & Heller in Morris Plains, NJ.
Moreover, absent consent or a warrant, a physician-employee of a public hospital can be liable under federal and state civil rights statutes. "Furthermore, even a physician associated with a private hospital can sometimes be deemed a public actor," Ciolek says. This situation exposes the physician to a potential civil rights claim when the physician "acted together with or obtained significant aid from state officials," or was a "willful participant in joint activity with the state or its agents."
In addition, if the phlebotomy causes an additional injury such as an infection or nerve damage, a malpractice claim always can be asserted irrespective of consent or any warrant. "Consent or a warrant does not immunize a physician from performing the phlebotomy in a negligent manner," Ciolek adds.
Warrant "rule, not exception"
Physicians are often "caught in the middle" of wanting to cooperate with law enforcement requests and caring for the patient, says John Tafuri, MD, FAAEM, regional director of TeamHealth Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland. "When you cloud those two, there is the potential to get into trouble," Tafuri says.
Plaintiff attorneys likely will argue that physicians should be familiar with the court ruling, Ciolek says. "Physicians need to be aware that a warrant is now the rule and not the exception," he says. "There should be no excuse by the physician that I was just doing what was asked of me.’"
The Supreme Court ruling tends to increase legal risks for physicians if they forcibly perform a blood draw without a warrant, says Tafuri, "and physicians may not be cognizant of the legal requirements of the ruling."
If a patient refuses a blood alcohol draw and is forcibly restrained and the blood is drawn without a court order, the physician potentially could face an assault allegation. This allegation is difficult to prove, however, particularly when the physicians can show they were acting in the best interest of the patient.
"If someone is not cooperative, even if they are not refusing, they can make all sorts of spurious allegations that the blood was illegally or negligently drawn," says Tafuri.
If the physician can show he or she was drawing the patient’s blood to rule out a serious medical condition due to a change in the patient’s mental status, for example, this situation makes such claims more defensible, he says.
Risk-reducing approaches
Physicians should consider these approaches to protect themselves legally, Ciolek advises:
• Physicians should be familiar with the hospital’s policy that addresses police-requested phlebotomies.
"If there isn’t one at their hospital, the issue should be raised immediately," Ciolek says. "Preferably, hospital policy should require a search warrant before even considering such a request."
A concise and thorough policy that was vetted and approved by the hospital’s legal department will provide the proof and the explanation of why the physician did or did not draw a suspect’s blood, he adds.
Most states have enacted some degree of statutory immunity for medical providers who draw blood at law enforcement’s request, but this immunity varies from state to state. "This is something that should be reviewed in advance by the hospital’s attorneys, and incorporated into hospital policy and made available to all physicians," Ciolek says.
• Physicians should check with insurance brokers to confirm that coverage exists for battery claims.
"Everyone knows that a typical malpractice claim alleges negligence," Ciolek says. "However, a battery claim may cause a physician’s insurer to disclaim coverage, because intentional acts are generally not covered under a malpractice policy."
A physician should determine if the hospital and/or law enforcement agency will provide indemnification for all claims arising out of such an event, adds Ciolek.
• Physicians should record everything relevant to the event.
"Include who requested the phlebotomy, if consent was given, the circumstances surrounding the phlebotomy, and the need for same," Ciolek says.
- Douglas F. Ciolek, Esq., Reiseman, Rosenberg, Jacobs & Heller, Morris Plains, NJ. Phone: (973) 206-2500 Ext. 626. Fax: (973) 206-2501. Email: [email protected].
- John Tafuri, MD, FAAEM, Regional Director, TeamHealth Cleveland (OH) Clinic. Phone: (216) 476-7312. Fax: (440) 835-3412. E-mail: [email protected].
