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Last week, the video of the arrest of a Utah nurse who refused to draw the blood of an unconscious patient went viral, with patients and medical providers alike expressing outrage over the nurse’s treatment.
What is a nurse or other medical provider in North Carolina to do when a law enforcement officer demands the withdrawal of blood from an unconscious patient? North Carolina General Statute § 20-139.1(c) answers this question. The nurse does not need to evaluate the circumstances to determine the legal propriety, nor must the nurse demand a warrant. The nurse need only determine that the blood draw may be done safely.
North Carolina General Statute § 20-139.1 provides:
Thus, North Carolina law requires a nurse to comply with the directive of a law enforcement officer to withdraw blood from an unconscious patient, unless the nurse determines that the withdrawal will endanger the safety of either the nurse or the patient. If the courts later determine that the withdrawal was unjustified or illegal, the results of the blood draw may be excluded from evidence; however, the nurse, hospital and/or practice that employs the nurse may not be held criminally or civilly liable for following the officer’s directive, complying with the statute, and withdrawing blood using the applicable standard of care.
The same rules apply even when the patient is conscious and actively refusing to submit to a blood draw. See N.C. Gen. Stat. § 20-139.1(d2). For instance, if an intoxicated patient comes in the Emergency Department and a police officer demands a blood draw, the nurse must do so, unless “it reasonably appears the procedure cannot be performed without endangering the safety” of the nurse or the patient. If the intoxicated patient is combative, the nurse may understandably determine the procedure cannot be performed safely and may refuse to withdraw the blood, in which case the nurse should provide written justification for the refusal to the law enforcement officer upon request.
What about HIPAA? Doesn’t it protect the patient from the law enforcement officer’s directive to draw blood? Not if state law requires the nurse to follow the officer’s directive. HIPAA allows medical providers to disclose protected health information to a law enforcement official for a law enforcement purpose if the disclosure is required by law, as it is in North Carolina. See 45 C.F.R. 164.512(f)(1)(i).
The recent attention to this topic is a good reminder to hospitals to review their policies and procedures and communicate their expectations with their staff and with local law enforcement agencies before a conflict arises.
For questions regarding patient consent or for help in drafting policies that balance a patient's privacy rights with medical providers' legal obligations, please contact Jenny McKellar, Tom Stukes, or Tony Brett.