Recent Arrest of Utah Nurse Causes a Necessary, but Unfortunate Policy Change for the Hospital

by Nexsen Pruet, PLLC
Contact

Nexsen Pruet, PLLC

[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.



[1] See N.C. Gen. Stat. Ann. § 20-16.2 (permitting police officers to forcibly obtain  blood sample from an unconscious individual without getting a search warrant so long as the officer has  “reasonable grounds” to believe the person has committed a drunk-driving offense, and the “reasonable belief that a delay in testing would result in dissipation of the person’s blood alcohol content” under an implied consent statute); S.C. Code Ann. § 56-5-2950(A) & (H) (permitting a South Carolina police officer, under a theory of implied consent (not withdrawing consent), to obtain a blood sample from a person who is unconscious or otherwise in a condition rendering the person incapable of refusal).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC
Contact
more
less

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.