By Kelley Weiss
http://stream.publicbroadcasting.net/production/mp3/kcur/local-kcur-583902.mp3
Kansas City, MO – Health care laws shield patients and providers from intrusion on medical treatment. But, sometimes prosecutors can challenge these laws, like when police want a blood sample from a person suspected of drunken driving. KCUR's Kelley Weiss reports on the struggle between hospitals and Johnson County District Attorney Phill Kline's office on how to get blood samples in DUI cases.
- - - - -
Picture this scenario that unfolded in January: an Overland Park woman crashes into another car and seriously injures two people. Police take the driver to the University of Kansas Hospital for treatment. They believe the woman is drunk and ask for a blood alcohol sample. But, she refuses the test. The police ask the hospital workers to draw the sample anyway but they refuse to do it, citing state law. Police then threaten to arrest the hospital workers for obstructing justice and finally, through a phone call to a judge, get a court order to have the blood drawn.
But a Johnson County Assistant District Attorney, Patrick Carney, says sometimes he cannot get a court order. He says prosecutors don't want to walk away from evidence they need to try complicated DUI cases in court. And, he says police need to do the test in a timely manner to get the most accurate results showing the patient's blood alcohol level.
Patrick Carney: "We have to do what's best for us to collect any evidence that we can in order to show conclusively what happened in these cases and sometimes it means that we have to be very, very aggressive in what we do."
Carney says in his area there are about 20 alcohol related crashes that cause injury to others in a year. In half of those cases, he says, a suspect will refuse a blood alcohol test. That's why Carney says District Attorney Phill Kline wants to arrest hospital workers who refuse to draw blood when the police ask for it. Plus, Carney says, these measure are justified because of the possible harm caused by drunken driving.
Patrick Carney: "What do I say to a family who's matriarch and one of their best sons was doing nothing more than going to a birthday party driving down the road way and a person flips their car through the interstate landing on top of them and crushing them instantly?"
KU Hospital spokesperson Dennis McCulloch does not argue with the serious problems drunken drivers can cause. But, he says, patient's still have rights in a hospital.
Dennis McCulloch: "When that person comes into our hospital, it's not a suspect. He or she is a patient. And as a patient, even if they're accused and wanted for drunk driving, they do not give up their right to decide their medical treatment and what can and cannot be done to them in a hospital."
Debra Vermillion, legal counsel for Shawnee Mission Medical Center, agrees and she says health care providers have to follow ethical and legal guidelines when treating patients.
Debra Vermillion: "The patient does have a due process right to refuse medical procedure. If you or I were to come into a hospital and didn't want a particular procedure done, then we would have the right to say no don't do that to a health care provider."
Nearby Wyandotte County District Attorney, Jerome Gorman, says in his 26 years experience a hospital worker has never not cooperated with law enforcement. As a prosecutor he says it is ideal to obtain the blood alcohol sample but it must be done without breaking the law. He says, unfortunately, when a patient refuses to give a blood sample it can get tricky.
Jerome Gorman: "It's no doubt that the issue is up for interpretation. We don't have a case specific enough on it to give us guidance and this is one that would go straight to the Kansas Supreme Court."
The problem, Gorman says, is that police want to get the blood sample as soon as possible for the most effective blood alcohol reading. But, this need can conflict with a patient's constitutional rights.
Johnson County Sheriff, Frank Denning, says his deputies can still collect evidence without going into the gray area of the law and arresting hospital workers.
Frank Denning: "My instructions to our personnel is that we won't arrest doctors or nurses off emergency room floors. There's a way that we can get the evidence we need to prevent that drunk from getting back on the streets and we will exhaust those remedies under the law."
Other Johnson County police departments declined to comment on this policy but Denning says working with hospitals to get evidence through the sheriff's office has not been a problem in the past. He says if a patient refuses the test police usually can get a subpoena to obtain any blood drawn for treatment purposes.
So, Johnson County District Attorney Kline's office wants to challenge medical ethics - and some would say state law - in an ongoing war on drunken driving. But, with the county sheriff saying they won't make the arrests of hospital workers who refuse to draw the blood samples it's unclear if Kline's initiative will even be an issue.
Funding for health care coverage on KCUR has been provided by the Health Care Foundation of Greater Kansas City.
Download recent health stories or subscribe to the KCUR Health Podcast