To test or not to test?

We had an unusual experience
last weekend. The police brought in a driver from a DUI accident. The driver appeared to be drunk and needed treatment for some minor injuries. One of the phlebotomists was drawing his blood for studies ordered by the ER physician when the law officer demanded that a blood alcohol (BAC) be drawn. The physician had not ordered a BAC at that point. The patient was belligerent, refusing to have his blood drawn for that purpose. When the phlebotomist hesitated, the officer intimated that if she did not draw the blood, she might be charged with obstruction of an investigation. The physician bailed us out by ordering the test, but what were our responsibilities?

It is important for laboratory
personnel to understand who does and who does not have authority to demand the performance of laboratory services. As this case points out, often there are individuals who will try to transfer their authority in one situation to authority over various types of medical personnel. The police officer in this case falls into that category.

Most states have laws that imply consent to testing for blood alcohol levels from those individuals involved in automobile accidents. These implied consent laws often give the arresting officer the option of choosing blood, urine or breath testing. Had the patient in this situation been unconscious and unable to refuse testing, or conscious and had not refused testing, the officer would have been within his authority to request blood alcohol testing on the patient because of the patients involvement in a traffic accident.

It is important, however, to remember that the implication of consent in law can be overridden by a patients actual refusal to undergo testing. In general, implied consent laws carry with them a hefty legal penalty, such as suspension or revocation of driving privileges sometimes even fines or imprisonment for refusing to comply with alcohol testing. These implied consent laws do acknowledge the right of the patient (accused) to refuse to be tested until and unless his refusal is overridden by court order. Usually, a court order for blood alcohol testing is not a viable option because by the time an order can be obtained, the blood alcohol content has changed sufficiently for the test not to be beneficial as evidence. In this particular matter, the officer had no immediate authority to demand blood testing over the patients refusal, but could have applied to the court for an order to compel testing. Until such an order was presented, the phlebotomist had the obligation to respect the competent (if inebriated) patients wishes about such testing.

The fact that the physician in charge ordered a blood alcohol test does not negate the fact that the patient had already refused it. Patients may refuse tests ordered by their physician for any reason, including fear of criminal prosecution. Performing such tests over the objection of a patient, even with a physicians order, can leave the institution liable for litigation. It sounds as though, in this instance, the patient eventually acquiesced to the physicians order. Under these circumstances, it is probably a good idea to confirm a patients eventual permission to perform a previously refused test. Otherwise, the possibility remains that, in the clear light of another day when it becomes expedient to do so, the patient may refute the claim that he gave permission for even the medically indicated test, and sue anyway. Whenever the lines of authority and the wishes of the patient are clouded in the clinical situation, sorting them out and documenting them clearly, with signatures of the parties involved, is wise.

Occasionally, police investigators will seek later to have blood alcohol tests run on blood that was drawn for other purposes at the time of admission. In general, performance of such tests requires either the permission of the patient (unlikely) or an order from a court of competent jurisdiction. Because such testing is not indicated for the treatment of the patient (who, by this time, has generally recovered from the acute effects of intoxication), the attending physician cannot legitimately authorize it. Your institution should have in place a policy to ensure that any late-ordered testing on previously obtained specimens is properly authorized under state law and hospital procedure.

Finally, it is important to remember that testing for medico-legal purposes above and beyond that required of general laboratory testing requires attention to the integrity of the specimen and to the chain of custody. After this experience, scheduling an in-service might be called for, perhaps in conjunction with a local public defender or public prosecutor, to familiarize phlebotomists and technical staff with appropriate policies and procedures to be followed when legal BAC testing is required in the hospital setting.

Barbara Harty-Golder
is a pathologist-attorney consultant in Chattanooga, TN. She maintains a consulting law practice with a special interest in medical law. She writes and lectures extensively on healthcare law, risk management and human resource management.

September 2003: Vol. 35, No. 9

© 2003 Nelson Publishing, Inc. All rights reserved.