Beaumont ER Doc and a Warrant: Good for the doc Updated

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:

Sui Generis–a New York law blog:

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 Volokh Conspiracy:

…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?

Fourth Amendment.com:

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.


Comments

  1. I have a great relationship with my local LEOs (it helps that I’m an ex-LEO myself), but I would also beg off doing that case, if only for technical and forensic reasons.

    You’d want to make a minimal incision (no sense in leaving a big scar on the kid and opening yourself up to liability for that). Combine that with the possibility that you’d have trouble getting it loose, and what are you supposed to do? Start cranking on it with hemostats or a rongeur?

    Bad idea. You run the risk of boogering up the rifling marks.

    If faced with that, I’d remind the officer that they’re after that bullet for evidentiary reasons, and that while most 9mms are copper-jacketed, they’re still much softer than your steel instruments. It’s the same reason why you don’t pick up shell casings with hemostats. If you mangle that physical evidence badly enough, the defense will challenge the ballistic ID, and attempt to get it thrown out.

    I personally support the guilty going to prison, and I’d hate to be the reason for a murderer not receiving his just desserts.

  2. classic… tell me again that we are NOT the National Healthcare Plan. Every Govenment agency from the FBI to the Department of Corrections sure as hell believe we are.

  3. I guess I’m a little unclear or uninformed about the ethical dilemmas surrounding the removal of bodily fluid for evidentiary purposes. I tried to research it on the internet, and couldn’t really find any information. What does the law say about a person’s right to refuse these tests? What powers do police officers have? What are the obligations of doctors in these situations? I guess I’m just interested in your experience with dilemmas like this. Thanks

  4. Howdy
    Flightfire—-as it was explained to me by a LEO—-(at least here in Wisconsin) all citizens are wards of the state. Thats why a police officer can interfere in a citizens life (legal-wise,). Anytime a citizen decides to break a law; he/she can have that action interrupted by a LEO. Also, if a citizen decides to attempt suicide a LEO can interven. And again, if a person is in the ER and they are above a state mandated level of alcohol then a LEO has the jurisdiction over that persons disposition, ie; to de-tox or to home.
    So in essence; you and I are technically NOT FREE. We are technically little children of the state. Now THAT would be a great topic for a post!!!!

  5. I’ve handed bullets and knives to officers waiting, gowned up, in the OR as I removed them. I can’t think of a case where the removal was strictly for evidentiary purposes. I recall one case in which I was repairing bowel injury and knew from the Xray that a slug was somewhere back there, in or near the psoas. I elected not to look for it, fearing causing problems when the bullet was causing none — even though the cops wanted it. I don’t know what I’d do if asked to operate strictly to retrieve evidence. I’m inclined to think I’d not do it: it would do no good for my “patient,” and might do harm — physical, not legal harm, is what I mean. Whereas I sympathize with the idea in theory; in practice, it seems wrong to ask a physician to do such a thing: we subject people to surgical risk because we calculate that the benefit to that person outweighs the risk. Interesting subject.

  6. A vote for the other side:
    We as MDs, and especially surgeons, are creations of the state- stuff that we routinely do to folks, such as cutting them open or administering potentially harmful chemicals, are illegal if done by people who are not licensed to do so by the state. I don’t think that any of us should be compelled to take part in an execution or remove a bullet against the desired of the shootee, but I don’t think any of us should have to be be concerned that our licenses will be threatened if we choose to do so. I agree that the ER is not the right place to remove this particular projectile, but I have removed bullets in my office under local lidocaine when thay are superficial and the shootee is sufficiently motivated. Removing a bullet to help convict a guilty criminal is no less an act of social hygiene than medicating a TB patient against his will or quarantining a contagious patient during an epidemic.

  7. And, for the record, I also have delivered bullets from the superficial tissues and handed them directly to the police, but: those patients were always acutely shot, and didn’t mind. I’m not against the prosecution of crime or criminals.

  8. I’m not against the prosecution of crime or criminals.

    No no… of course not. I hope I didn’t imply otherwise.

    This is simply one of those cases where removing the bullet is minimally invasive, and likely to be accomplished with very little risk to the patient. In my mind, this is only slightly beyond a forced blood draw, or a forced DNA sample; it’s certainly not the same as digging into the patient’s brain or abdomen for the same bullet.

    The state has a compelling interest in keeping this actor behind bars for a very long time, and a court has already ruled that the evidence can be obtained against the patient’s will.

    So what now? I don’t think any physician who finds this ethically or morally objectionable should be forced to participate. On the other hand, I wouldn’t look sideways at a physician who did take it out. This is a felon witholding evidence, not a euthanasia case, or anything similarly odious.

    I also think I’ d have a problem with a state board sanctioning such a physician.

  9. I have to agree with gruntdoc on this one. The role of the physician is to serve the medical needs of the patient – and perhaps the medical needs of society. It is NOT to serve the law enforcement needs of the state, although these two roles sometimes overlap.

    If we do not make a clear distinction between these two roles, when do we draw the line? Should physicians report every person who has evidence of illegal substances in their body to the police? What about interrogating patients about their residency status to help the immigration officers out? Should we mount radar guns in our vehicles and catch a few speeders on the way to work too? Where does it stop?

    I would also suggest that a risk benefit analysis be done here. Yes, the risk is minimal that you will cause some horrific problem by removing this bullet, but the risk is still there. Suppose a horrible infection occurs after the excision – why should physicians’ malpractice insurance have to be exposed to this unnecessary risk?

  10. I have to agree, I would hate to see that person walk into my ED. Sounds like a problem for a surgeon in a scheduled procedure, but that would require “informed consent”, which I don’t know what the legalities of that would be..

    On the other side, being a nurse, I have no problem drawing blood for the Police if asked “while I’m drawing blood for medical purposes”. If they just want blood, and I don’t need any, they can (and do) bring their own phlebotemists..

    On a totally side note, Merry Christmas, Grunt Doc!

  11. It seems to me that we’re already an arm of the state (and law enforcement) to some degree. We’re licensed by the state, we’re required to take certain types of CME by the state (mandatory hours in domestic violence, HIV, etc), and many of us have mandatory reporting requirements for certain types of violence. Our charts are considered legal documents, and given significant weight in legal procedings.

    We already assist law enforcement in gathering evidence, often in ways that are uncomfortable and sometimes traumatic for the patient (think about some of your worst rape examinations).

    That said, I completely agree that no physician should be compelled or bullied into helping these officers in violation of their own ethics (and boo on those officers for trying to Bogart the ER doc into doing it)… but I certainly understand the other side.

  12. NewGuy,
    I’d disagree that we’re already an ‘arm of the state’ because we are licensed and regulated by same; so are beauticians. (Nothing disparaging to beauticians, BTW).

    Yes, we are occasionally asked to participate in the collection of evidence against a patient’s will (legal blood draws), but that’s a truly minimally invasive procedure, and I’ve never seen it done to a subject who was actively unwilling (though I’ve see people intimidated / cajoled into complying by the police).

    Were I an arm of the law I’d be reporting people for drunk driving (a lot of people), but I’m not a cop, I’m a physician. Different rules, different standards and expectations.

  13. Well, I think there might be another factor no one I’ve seen discuss yet

    Let’s say the LEO does NOT serve the warrent, and the hospital decides to remove the bullet – there is nothing to prevent the bullet from being tossed – or NOT treated as evidence

    So, you file the paperwork, so if the bullet IS taken out, it goes right into evidence

    Think of it as the LEO doing a CYA exercise

  14. This was a scheduled surgery, conducted by a (very) qualified truama surgeon. He did the surgery as a public service and was not compelled in any fashion. HE chose the ER as the surgery location because of pre-op examinations. The soft bones of the frontal sinuses had begun to encapsulate the the deformed projectile…a fact that X-ray and catscan did not reveal. The only reason that the second surgery has not been done is that hospitals are frightened of law suits.
    Surgeons are easy to find, most are committed to helping humanity. Hospitals are all about money…period.

  15. IF that’s all true, then it’s a different story altogether, which would be a good thing. The article certainly didn’t explain any of that.

    Not sure if I buy that the ED was chosen for ‘pre-op examinations’, it was chosen for convenience; the statement that ‘Hospitals are all about money’ is a non-sequitur in this paragraph, and its inclusion is odd.

  16. Pre-Op was done at UTMB Galveston. SE (Beaumont) ER was selected for initial surgery because pre-op indicated that the bullet was not confined by any bone and would be “cosmetic”. The bullet (9mm solid ) entered the skin at the hairline, caused a “divot” in the skull. The bullet deformed slightly and “slid” down about an inch, with two small bone fragments (.05 “) of the frontal sinuses capturing the deformed portion of the slug.
    I suppose that the statement that hospitals are all about money is a little broad. I should have said that privately owned hospitals in Texas are “all about money”. Surgeons are eager to perform the procedure, but are bound by contracts to the hospitals. The hospitals feel as though there is nothing to gain by allowing the surgery to occur in their facilities. It is not a moral issue to them, it is a money issue. In that aspect, I have to agree.
    General vs. local anesthesia is the issue. Weighing the right of the public to be safe vs. the individual rights of the suspect.

  17. I know it’s late, but I wonder if the authorities “released him from custody” so they wouldn’t have to pay the bill.