CNN today has a story with lots of ‘balancing interests’ connotations,to wit:
PORT ARTHUR, Texas (AP) — In the middle of Joshua Bush’s forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.
Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.
So I’m reading this, thinking to myself, “I pity the ER doc they foist this removal on..”, then read they already tried that:
But a Beaumont doctor determined that small pieces of bone were growing around the slug, and he did not have the proper tools in the emergency room to do it. The doctor said that removal would require surgery under general anesthesia and that no operating rooms were available.
I’ve heard cops are entirely willing to arrest medical types for “obstructing justice” in the ED, usually for not wanting to help with legal blood draws on suspects. Good for this Emergency Physician for refusing, albeit on a technicality (the doc would need a reason better than “That’s not ethical” to keep from leaving in cuffs), and shame on the Port Arthur PD for foisting this search warrant on the ED: it’s NOT an emergency. They should have arranged for removal by a qualified doctor well ahead of time, and after letting the doctor have appropriate consultations with his lawyer and ethicists.
And once again, good for the Beaumont ED doc for doing the right thing.
Update 12-22-06: the Legal community is blogging about this, too:
I strongly oppose the prosecution’s position in this case. In my opinion, the risks, no matter how statistically unlikely, are potentially quite serious and far outweigh any potential benefits of the fishing expedition being carried out by prosecutors. And, the ethical issues, both medical and legal, are quite complex and consist of innumerable shades of gray, as well. It’s a slippery slope and the ramifications of allowing this procedure are far reaching. It’s simply not worth it.
…the legality of the warrant depends on a pretty context-sensitive balance: on one hand, how much is retrieving the bullet likely to help the government’s case, and on the other hand, how much harm is it likely to cause to the young man who will have the bullet extracted?
Winston involved a search by surgery, but the search in that case was more intrusive than this one appears, and the Supreme Court held that the search was unreasonable because of the risks to the patient. The truth seeking function of the criminal justice system had to take a back seat to the rights of the individual in Winstson’s case.
Will Mr. Bush get the same ruling? From what I’ve read, likely not.
I’m a) still appalled the PD decided an ED was the right place to try to execute this warrant, and b) more and more concerned about a slippery slope wherein medical professionals are compelled, against their will, their ethics, and their Society Statements (update: I cannot find any such statements, which is odd, and tells me we’re crossing a new frontier here) to perform medical procedures for the State. For instance, there have been a couple of cases recently of death penalty cases where starting an IV was a significant impediment to their execution; imagine this person brought to the ED for a central line so the execution could go forward.
The (completely off point) ACEP Policy on Law Enforcement Information Gathering in the Emergency Department.