As the nurse practitioner with the least seniority, Ms. P was stuck working the graveyard shift in the hospital emergency department (ED). Some nights were slow and uneventful while others could be highly stressful and demanding. When Ms. P saw the police escorting a stumbling and muttering woman into the ED one night, she knew she was in for the latter.

One officer placed the woman into a chair and another came to talk to Ms. P. Apparently the patient, Ms. D, was observed crashing her car into a tree and then driving away on the wrong side of the road. When the police pulled her over, Ms. D appeared to be intoxicated but passed a Breathalyzer test. The officer noted that the woman had glassy eyes, slurred speech, and was shaking violently. He also noticed a vial of pills in her front seat. According to the police report, Ms. D was disoriented and questions had to be asked repeatedly before she would answer. Ms. D admitted taking pills that had been prescribed for her sister.

The officer handed the remainder of the pills to Ms. P. The prescription for 20 tablets of carisoprodol (Soma) had been filled the day before, but only seven pills were left. Had the medication been taken as prescribed, there would have been 16 pills remaining in the vial.

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Ms. P asked the officers to bring Ms. D into an exam room. The patient had difficulty walking without assistance and was unable to walk in a straight line. Ms. P explained to Ms. D that she was going to check her BP and heart rate, but the patient barely seemed to hear her. Her pulse was normal, but BP was borderline low (90/60 mm Hg). Ms. P asked the patient her name several times before receiving a slurred response. Ms. D did not seem to be aware that she was in a hospital and was disoriented as to the date. When questioned about the Soma, Ms. D said that she believed she had taken two pills a few hours ago. Ms. P noted that the patient alternated between nodding off to sleep and being alert and somewhat aggressive. Ms. D didn’t answer when asked if she had taken any other medications.

Ms. P’s instincts told her that the patient had taken more than two pills, but it was impossible to know for sure without further testing. She asked the patient for blood and urine samples. Ms. D did not answer. Ms. P repeated the request several times. The patient eventually became agitated and spit at Ms. P before being restrained by police. At this point, Ms. P called in the supervising physician, Dr. A, and explained the situation to him. The doctor asked Ms. P to call Ms. D’s sister to get her consent for the blood/urine screen. In the meantime, he unsuccessfully tried to explain to Ms. D that he needed to know what she had ingested to properly treat her. Ms. D did not answer. Dr. A told her that he needed a urine sample. Rather than reply, Ms. D attempted to walk away but was unable to keep her balance.

“Why are you resisting our attempts to help you?” Dr. A asked. There was no answer.

Ms. P called Dr. A into the hallway. “I wasn’t able to get through to the patient’s sister,” she said. “The patient’s BP is low, and I’m not sure what she might have taken in addition to the Soma. Questioning her was completely fruitless. We won’t know for sure without blood and urine samples.”

Dr. A agreed and ordered Ms. P to get blood and urine samples forcibly if necessary. With the help of Dr. A and some hospital staff, Ms. P subdued Ms. D, took a blood sample, and catheterized her. The drug screens revealed benzodiazepines, marijuana, and opiates. Dr. A administered naloxone and activated charcoal. When the patient was stabilized and coherent, the police arrested her for driving under the influence.

Months later, Ms. P and Dr. A were informed that Ms. D was suing them for medical battery. The complaint alleged that the clinicians “by use of force and against Ms. D’s will, obtained blood and urine samples,” and that these actions constituted battery. The complaint also stated that the clinicians’ desire to take blood and urine samples was “ostensibly to check the plaintiff’s welfare but actually motivated by the desire to assist the police.”

The clinicians explained to their defense attorney why they believed it was necessary to take blood and urine without Ms. D’s consent. “Her BP was low, she was only semi-responsive, unable to walk, and unable to state the date,” said Dr. A. “We didn’t know what she had taken, besides the Soma. Without knowing, we couldn’t treat her.”

The attorney informed the clinicians that he was going to file a motion to dismiss the case based on the common-law emergency exception to medical battery. “When a clinician is confronted with a patient who is unable to consent and is in need of prompt medical attention to preserve her life, there is an exception to the requirement of getting a patient’s consent,” explained the attorney.

The attorney filed the motion to dismiss, and the judge granted it.

Legal background

As a general rule, a patient’s consent is needed before a clinician can administer treatment. Battery is defined as the unauthorized touching of another. In a medical battery case, an injured party can recover by either establishing that there was no consent to the medical treatment performed, the treatment was against the injured party’s will, or the treatment substantially varied from the consent granted. In such cases, the battery has occurred because the person administering the medical care intentionally touched the person without authorization. As with most rules, however, there are exceptions. When there is an emergency and the patient needs medical attention but is unable to consent, that consent is implied, and clinicians can do what is necessary to preserve the life or health of the patient.

Protecting yourself

Attempting to obtain consent from the patient should be the first order of business. Both clinicians in this case tried numerous times to obtain consent from an incoherent patient. Ms. P went one step further by attempting to get consent from Ms. D’s sister. In the event that a relative can be reached, this is an advisable strategy. However, once it was apparent that no consent could be gained from Ms. D or her sister and both practitioners believed that a medical emergency existed and that they could not effectively treat the patient without information from a drug screen, the emergency exception to consent came into play. At that point, both clinicians did what they felt necessary to preserve the health and life of their patient. Luckily, the judge agreed with their decision. n

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.