Ms. C, aged 25 years, was a nurse practitioner in the emergency department (ED) of a small medical center that served a busy community. Since she was the new employee on staff, she was first assigned to work on the night shift.
Considering she had been working in private practice—in a pediatric setting—Ms. C was thrilled to have a more expansive set of duties. Working in private practice was too routinized for her taste and she preferred a little more variety on a day-to-day basis.
Very early one morning when Ms. C was on duty, she got just that. Police officers and emergency medical personnel came rushing in at approximately 3 a.m. holding a man with a gunshot wound. According to a police statement taken in the triage room, an officer on foot patrol had witnessed the man, Mr. O, driving erratically near a convenience store and had attempted to flag the driver down.
The officer suspected that the driver was under the influence. But instead of pulling over, Mr. O drove directly into the officer. The officer fired his gun at the car, striking Mr. O in the left shoulder. When the car finally came to a stop, two backup officers arrested Mr. O and brought him to the hospital.
In the ED, Mr. O was asked to consent to a blood draw by the police for evidentiary purposes, and he refused the request. The officer told Mr. O that he would get a warrant, but never did so.
Mr. O was rushed off for emergency surgery, and afterward, Ms. C was assigned to care for him in the recovery unit. Pending investigation, Mr. O’s room was guarded by several armed police officers.
When Ms. C left the patient’s room, the officers entered and again tried to get Mr. O to consent to a blood draw. He refused once more. One of the officers pulled Ms. C aside and asked her surreptitiously if she would be willing to obtain a blood sample from the patient for them. Ms. C looked down the hall, but didn’t see her supervisor or an attending physician. After a moment of thought, she decided the request was probably valid and took the empty vial that the officer gave her.
Ms. C quietly entered the room where Mr. O was now resting comfortably. She asked the patient how he was feeling, checked his vital signs, adjusted his IV drip, made a few notes in his chart, and took the blood sample, which she then gave to the police after she left the room.
Mr. O recovered and was transferred to police custody shortly thereafter. Because it was a busy night in the ED, Ms. C quickly moved on to treat her other patients. She never saw Mr. O again and was not aware that he had been brought to the precinct. Several months later, Ms. C was served with papers notifying her that she was being sued by Mr. O for medical battery.
In a panic, Ms. C immediately contacted the defense attorney her insurance company recommended. At a lengthy consultation with her lawyer, Ms. C reviewed her chart notes on this patient and recounted her quiet conversation with the officer, who had asked her to do him a favor. Ms. C’s attorney reassured her that in all probability this charge of medical battery would not stick.
“We will move for summary judgment,” the lawyer said. “We will ask the court to dismiss the case based on the fact that you were acting on instructions from the police officers and had no reason to believe their request was improper.”
The attorney moved to have the case dismissed on these grounds, and the trial court agreed with him, granting summary judgment. Ms. C was relieved until she was notified that the plaintiff was appealing the case.
At the appeal, Mr. O’s attorney argued that although their client was awake and alert, Ms. C never informed him that she was taking blood so the police could assess his alcohol level at the time he hit the pedestrian policeman. Instead, the plaintiff’s counsel argued that Ms. C led Mr. O to believe that she was taking his blood for medical purposes. The plaintiff’s attorney further argued that in the absence of consent, the drawing of Mr. O’s blood constituted medical battery.
Ms. C’s attorney countered that Mr. O never objected to the blood draw, and thus he tacitly consented.
The appeals court sided with the plaintiff and held that Ms. C’s actions constituted medical battery. Specifically, the court said that consent for medical treatment is not the same as consent to a blood draw for law-enforcement purposes.
The court also noted that the legislature of this state—in opposition to that of several other states—does not expressly require clinicians to comply with law-enforcement requests in a medical setting. Therefore, health-care providers who choose to comply with police requests are not immune from liability. Ms. C settled the case with Mr. O for an unspecified amount.
Medical malpractice cases require an injury in order for a lawsuit to be filed. In other words, making a mistake isn’t enough to be sued, unless that error resulted in an injury. However, medical battery does not require an injury. In common law, a medical professional who performs a procedure that a patient has not consented to is liable for battery.
Battery is defined as unlawful touching or contact with another person—including touching someone without consent. If an unconscious person is brought into the ED, treating him or her would not constitute battery because there is implied consent. However, a conscious person must consent to medical treatment and any procedure that involves physical contact.
In this case, although Mr. O consented to medical treatment, he clearly did not consent to a blood draw for law-enforcement purposes. In fact, Mr. O specifically refused to have his blood drawn for that purpose on two separate occasions.
One of the arguments that the defense attorney made was that Ms. C was not aware that Mr. O had previously refused the blood draw from the police. However, even if Ms. C did not know that the patient had refused to comply, she was still obligated to inform him that the blood draw was for law-enforcement—and not medical—purposes, and ask for his consent.
It is important to remember that consent for medical treatment is limited. Such consent cannot be interpreted as permission for a practitioner to draw blood for other purposes or to do anything to the patient that is not treatment-related.
Check particular state statutes to find out whether your state has enacted any law protecting providers who comply with police requests. Some states, Illinois and Pennsylvania for example, do protect medical personnel in such instances. However, according to common law—and in states in which no such protective legislation has been enacted—a clinician will not be protected from a lawsuit if he or she assists police in an unconsented blood draw.