[co-author: Shannon Vogan]

The Incident

On July 26, 2017, multiple media sources reported a head nurse in a Utah hospital’s burn unit was arrested for refusing to allow the taking of a blood sample by a University of Utah police officer from an unconscious patient. The patient was a victim who was critically injured in a car accident caused by a suspect fleeing from police in circumstances unrelated to the victim. The unconscious patient was not suspected of any crime. In fact, the officer claims he was attempting to obtain a blood sample in order to show the patient was not under the influence of alcohol. The officer, following commands from his supervisor, demanded the nurse obtain a blood sample from the patient on the theory he had “implied consent” because the motorist was unconscious. The nurse calmly refused the officer’s request for a blood sample by reading the hospital’s policy to the officer as well as having her supervisor explain the policy to the officer over the phone. In spite of both explations, the officer yelled, “we’re done here,” and then physically restrained the nurse, handcuffed her and forced her into a police vehicle. All of this was recorded on police video and released to the media shortly thereafter.

The actions of the police officer were not only shocking, but were likely in violation of applicable law and may subject the officer and police department to both civil and criminal liability. There are absolutely no laws that would permit a police officer to demand a blood sample from a victim under the circumstances described above, and no law that justifies the brutal treatment of the nurse. Further, the Supreme Court has suggested in recent cases that state laws allowing police to draw blood from unconscious patients under a theory of “implied consent” may be unconstitutional.

State “Implied Consent” Laws and their Constitutionality

Applicable North Carolina and South Carolina law purports to authorize police officers, under certain circumstances, to obtain blood samples from unconscious individuals, but only those individuals who are suspected to have committed a crime.[1]  The taking of blood samples for law enforcement purposes is considered  a “search” of the person, and therefore this action is subect to scrutiny under the Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects citizens against unreasonable searches and seizures by the government. The reach of “implied consent” laws have recently been curtailed by two U.S. Supreme Court decisions. 

In Missouri v. McNeely, the court held “a warrantless search of the person is reasonable only if it falls within a recognized exception,” such as “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” A court “looks to the totality of circumstances” to determine whether exigent circumstances justified law enforcement in acting without a warrant.” The court also distinguished a blood test for alcohol from other “now or never” exigency circumstances because with new technology, the police will often be able to obtain a warrant and then still have time to test blood-alcohol levels, which can be tracked over time.  

More recently, in Birchfield v. North Dakota, the Supreme Court held the Fourth Amendment “permits warrantless breath tests incident to arrest for drunk driving,” but does not permit warrantless blood tests incident to arrests for drunk driving. Additionally, it held the North Dakota implied consent law was unconstitutional because motorists cannot be deemed to have consented to a blood test by virtue of an implied-consent statute subject to the penalty of committing a criminal offense. Although this holding was narrowed to statutes that criminalized the refusal of consent, the court emphasized physically intrusive nature of blood tests as opposed to breath tests, and stated it did not believe exigency would be “common” in these types of scenarios.

The North Carolina Supreme Court cited McNeely and Birchfield in its June 2017 decision, State v. Romano, holding the North Carolina statute permitting the forceable taking of a blood sample from an unconscious individual was unconstitutional as applied.  If the South Carolina law, which permits the taking of a blood sample from an unconscious individual who has been deemed to have given “implied consent,” was subjected to such scrutiny under similar circumstances, it would also likely be unconstitutional as applied.

Rights of the Patient

Patients in the hospital setting have a right to make informed decisions about the care they receive. The hallmarks of the laws referenced above permitting the taking of samples for chemical analysis for law enforcement purposes include the concept that individuals consent to such taking. The patient whose blood sample was requested by the police did not consent, nor was he subject to the Utah implied consent statute, which requires the police to have “reasonable grounds” before taking the blood of an unconscious patient.

Additionally, nurses are bound by a code of ethics which dictates they must first promote the “rights, safety, and health of the patient” according to the American Nurses Association. The nurse in this situation upheld her code of ethics, her duty to her patient, and the policies of her hospital. If the nurse had not protected the rights of her patient against an unlawful search, the patient would potentially have had an action for battery against the police, and perhaps the nurse and hospital for permitting the invasive search. Although some state laws protect physicians and nurses who take samples of patients at the demand of law enforcement, they often do not protect physicians and nurses who act negligently or recklessly.

In addition, patients also have the right to privacy and to receive care in a safe setting. Even if law enforcement could have lawfully demanded the blood sample under the current circumstances, confidentiality laws likely would not have permitted the hospital to disclose the results. Specifically, the Privacy Standards, promulgated under the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), significantly limits the disclosures of protected health information (PHI) of victims of a crime to law enforcement. Generally, absent a court order or warrant, a hospital may disclose PHI in response to a law enforcement official's request about an individual who is or is suspected to be a victim of a crime only if the victim agrees to the disclosure, or if the hospital cannot obtain agreement from the victim “because of incapacity or other emergency circumstance, provided that: (a) the law enforcement official represents that such information is needed to determine whether a violation of law by a person other than the victim has occurred, and such information is not intended to be used against the victim; (b) the law enforcement official represents that immediate law enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure; and (c) the disclosure is in the best interests of the individual as determined by the covered entity, in the exercise of professional judgment.” Under the circumstances described above, the police officer did not make the required representations; therefore, the disclosures would likely not have been allowed by the hospital even if the blood had been drawn.

Causes of Action against the Officer

Under the current situation, the police officer could be subject to civil and/or criminal liabilities under theories of assault and battery, false arrest and false imprisonment if the nurse decides to press charges or sue. The arrest was forcible and without cause. The nurse was released from custody shortly after the incident and was never charged with a crime. She may also have causes of action under theories of negligence, gross negligence and outrage or intentional infliction of emotional distress. 

The police officer is subject to liability from other parties as well. The nurse was working in a critical care burn unit at the time of her arrest and may have had several patients or patient related duties assigned to her. If any patients in the burn unit sufferred injuries caused by the sudden absence of the nurse or suffered distress caused by the outrageous conduct of the police officer, then theoretically, the patients may have causes of action against the police officer for negligence or outrage. Additionally, the University of Utah Police Department may be subject to liability based on an agency theory because it employs the police officer and reportedly instructed him on his actions; however, police departments often enjoy protections and immunities from civil liability.

Conclusion

This situation should never have happened. The police officer’s conduct was so far outside the boundaries of law enforcement authority under applicable law and any professional/ethical standards. In comparison, the nurse conducted herself in accordance with applicable law, hospital policy and was the model of professional and ethical behavior.  
 

Also according to media reports, the hospital took the major step of modifying its policies to have only administrative personnel deal with law enforcement. This was a necessary but unfortunate step for the hosptial to have to make because in most communities, law enforcement and nursing typically have a very longstanding and collegial working relationship, particularly in the emergency and critical care settings. 

Situations, such as this, while extremely unfortunate and exquisitely stressful, can be used to improve facility policies in dealing with law enforcement by improving communication and developing methods to de-escalate highly confrontational circumstances.