An emergency physician recently told us a story of an unusual night visit from the police. “One night in our emergency department, the police brought in a person they suspected of dealing drugs,” he said. “They said they wanted an Ewald tube lavage because they alleged the patient swallowed evidence. When I refused, they got an on-call magistrate to come to the emergency department in the middle of the night—still in his pajamas—to present a warrant to me.

“When he got there, I gave him the Ewald tube and a basin and told him, ‘Here you go. The red plunger pushes the water in, and the blue plunger pulls it back out. Have fun.’ The magistrate left the ED with the police and the patient, and that was the end of it.”

Although the story may bring a chuckle, there are two key questions it raises:

1. Must the physician do the search even if the patient does not consent?
2. Will the physician be in violation of the warrant or a state statute for refusing to comply with the warrant?

Thankfully, the quick answer to both questions seems to be no. We couldn’t find any report of a physician being sued for not complying with a such a warrant.^1,2 But because it hasn’t happened doesn’t necessarily mean it couldn’t. Here are some guidelines and background information you should know to avoid potential trouble.

State Codes and Laws

Some states have regulations regarding emergency physicians or others complying with warrants in search of evidence within body cavities and whether consent is required. For example:

• In Washington, RCW 10.79.080 uses the word “authorized” when discussing a warrant that seeks evidence through a body cavity search.³ It does not, however, imply that a physician is “compelled” to perform such a search.
• In Maine (as of 2003), Title 5, Part 1, Chapter 9, Section 200-G specifically concludes, “Nothing in this subsection requires a person authorized [italics ours] to conduct body cavity searches to conduct a body cavity search pursuant to a search warrant.”⁴
• In Tennessee, a physician complying with a valid search warrant is protected from liability “except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search.”⁵

The majority of state laws addressing body cavity searches are silent on the issue of a physician not complying with such a warrant. Being “authorized” is different from being “mandated.” Providing that the medical record adequately documents the medical reasons for the physician’s refusal to perform the search on a non-consenting patient, a judge would likely have little recourse against a third-party physician who refuses to perform such a search. (However, these examples may not hold true for all states; check with your hospital’s legal counsel for more information on your state.)

Legal Feedback

Regardless of whether your state has statutes that address physician adherence in body cavity evidence searches, there are some legal theories that members of ACEP’s Medical-Legal Committee say may keep physicians from being called upon to perform them. (Again, this advice is for discussion only; consult with your own legal counsel for specific situations.)

Are you specifically named in the warrant as the physician performing the search? A warrant that doesn’t name a specific physician or other health care professional to perform the search is probably not enforceable. A judge would be trying to assert jurisdiction over a third party who hasn’t been accused of a crime.

A physician also cannot be made an agent of the state for the purposes of law enforcement; if an activity being performed isn’t advancing the health care of a patient, then the physician has no business performing that activity. In other words, a judge can’t just rule that I have to shovel the courthouse steps. Such an order would be unenforceable. A recent example of this “agency rule” is the request by the federal government for Apple to de-encrypt a terrorist’s iPhone.

Additionally, a physician not specifically appointed by the court to perform such a search isn’t obliged to follow a warrant for a body search. If a patient is stable, is capable of making their own decisions, and doesn’t consent, we aren’t medically or legally obliged to comply with a warrant. It would be reasonable to redirect law enforcement to an appropriate jail clinic where a physician with legal jurisdiction can perform the exam.⁶

Liability is an issue when conducting a procedure mandated by a search warrant. It might be argued that even a patient who consented had been coerced into consenting (eg, if handcuffed to a gurney with two police officers standing by). If doctors perform medically unnecessary procedures, even with a warrant, they can be sued for battery or malpractice if the patient suffers an injury and face licensure action by the state medical board.⁷ (A better course is to advise the patient of potential risks such as perforation, drug absorption, etc. and offer the exam and/or X-ray. An honest conversation and/or a positive X-ray might cause a patient to reconsider.)

A physician refusing to do such a body cavity search may do so with at least the implicit approval of the American Medical Association‘s Code of Ethics—namely principles I, III, IV, VI, VII, and VIII, as well as the preamble, which states, “As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.”⁸ One outspoken MD/JD recommended that the warrant be copied and submitted to the judge’s county judicial review board. “And if that doesn’t work, put it up on social media. Overlawyered.com has a far reach and would create quite a buzz about it.”

Guidelines for Physicians

If you’re faced with a similar situation, it’s best to have a protocol in place. Below are some steps you should take prior to making any decisions when examining a patient brought in by police:

• Rule out a medical emergency or life-threatening condition by doing a medical screening exam to fulfill the requirements of the EMTALA mandate.
• Talk to the patient and gather as much information as possible. Is the patient likely to be “packing” a weapon or contraband?
• Determine whether the patient has decision-making capacity. Are drugs or alcohol affecting their mental capacity?
• Try to obtain consent by explaining the risk of drug toxicity if you suspect drugs are involved. Several incidents of death from such activity have been recorded.⁹ Offer noninvasive options such as ultrasound or X-ray. If consent is granted, perform the exam and/or tests.
• If consent for the search is not given, do not perform the exam. Explain to the officers that performing the exam may require chemical or physical restraints with risk of aspiration and/or injury and might place the patient at increased risk of rupture of the contents with harm to the patient or staff.
• Notify the hospital administrator in charge (or on call) and/or hospital legal counsel for advice.
• Document the entire encounter in detail, with emphasis placed on the medical rationale for not doing the search. Make sure to have the encounter write-up witnessed.

Dr. Pilcher is an emergency physician who writes “Learning from Lawsuits” on his website  for physician colleagues. Dr. Schroeder is an emergency physician with North Sound Emergency Medicine in Everett, Washington.

References

1. USA v Gray, 669 F3d 556 (5th Cir 2012).
2. Snider B. When can police conduct a body cavity search? FindLaw website. Accessed Sept. 23, 2016.
3. RCW 10.79.080: Strip, body cavity searches—warrant, authorization, report. Washington State Legislature website. Accessed Sept. 23, 2016.
4. Maine Revised Statutes §200-G. Strip searches and body cavity searches. Maine Legislature website. Accessed Sept. 23, 2016.
5. 2010 Tennessee Code 40-7-121 – Body cavity searches warrant requirement waiver liability. Justia US Law website. Accessed Sept. 23, 2016.
6. Bell v Wolfish, 441 US 520 (US Supreme Court 1979).
7. USA v Booker, 728 F3d 535, 536 (6th Cir 2013).
8. Principles of medical ethics. American Medical Association website. Accessed Sept. 23, 2016.
9. Cappelletti S, Aromatario M, Bottoni E, et al. Drug-related deaths with evidence of body packing: two case reports and medico-legal issues. Leg Med (Tokyo). 2016;20:23-26.