Police are increasingly leaning on emergency department (ED) staff to collect blood samples from suspected drunk drivers, and physicians, nurses and administrators are sometimes bristling at the ethical and legal conflicts involved.
Many ED staff and hospital administrators across the country have been troubled for years with what Emergency Nurses Association (ENA) President Bill Briggs calls “a huge moral conflict.”
“It has been controversial for all of the 26 years I've been an active member of ENA,” he said. “It's different if they (patients) are psychotic or highly intoxicated. But when a patient appears capable of making that decision, it's a conflict. Nowhere else are they (nurses) asked to do something against a patient's will
…It's a threat to the profession.”
Nurses worry about potential subpoenas, their every move in a blood draw or their work history aggressively scrutinized by defense attorneys trying to beat a charge that has grown tougher to fight. Some nurses also are aware law enforcement can turn on them.
While apparently it is very rare, there was a case in Houston last year in which a Memorial Hermann Hospital nurse refused a mandatory blood draw on an accused drunk driver and was threatened with charges and arrest for interfering, confirmed Warren Diepraam, a former Houston-area prosecutor who has specialized in vehicular crime for several years. But police found another nurse to perform the blood draw, he said.
A small number of hospitals have adopted specific policies addressing blood warrants, said Diepraam. Noting one person dies every 20 minutes in a DWI-related crime, he was somewhat less than sympathetic to the staff and hospital concerns. The threat of lawsuits, he said, is a non-issue.
“I am not aware of one hospital, doctor or nurse that has been sued in the last decade, or frankly ever,” he said. “Additional protections may be helpful, but there is not a lawsuit problem.”
And on the financial side, he said some states, like Texas, collect millions in licensing fees and funnel the money back to hospitals.
“If hospitals do not want to follow the law on blood draws,” he said, “maybe the money should go to law enforcement so they can hire nurses.”
Some in the ED simply view mandatory blood draw and testing as a “big brother” issue. According to a report to Congress last year by the National Highway Traffic Safety Administration, some emergency physicians say it can make medical staff feel like agents of the police. Hospital administrators worry about legal ramifications and insist their EDs are for just that – emergencies. Hospitals further argue their facilities lack a forensic lab to properly process and document the process of testing blood evidence.
The issue of who draws the blood has been debated in various states, and over recent months the issue has been simmering in Texas. Earlier this year, 2 of Austin's largest hospital systems made it clear to the city they didn't want police bringing suspected drunk drivers to their EDs for mandatory blood draws, and citizens against mandatory blood draws packed a public meeting and exchanged spirited dialogue with city officials and police considering a police-phlebotomist program. Steve Berkowitz, MD, chief medical director at one of those hospital systems, St. David's HealthCare, cited medical ethics and liability for the hospital and its staff as the most important issues.
“They (suspected drunk drivers) should be treated like any other patient,” Dr. Berkowitz said. “It puts everybody in an awkward position.”
To him, it is a basic question: has the patient signed a consent form? “If not, we're not going to touch the guy,” he said. Dr. Berkowitz also emphasized that like many hospitals around the country, St. David's doesn't have a forensic lab to document every step of blood processing and testing, so evidence could potentially more easily be challenged in court.
“Why should we set up a system that a defense attorney can easily dispute,” he said. “Drunk driving is a problem. We all want it stopped, but a new system needs to be used.”
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