[ Wednesday, August 18, 2004 ]
HIPAA and Law Enforcement:
in the Minneapolis Star Tribune: Police take a suspect to the hospital ER early Sunday morning and request the doctor to take a blood sample. Suspect may have been drinking, and is accused of stabbing another man (who eventually died). Doctor refuses to take the blood, citing HIPAA and hospital policy against "invasive" or "intrusive" procedures without patient consent. Police wake up a judge, who calls the doctor and tells him he better take the blood sample, but he still refuses (hospital policy requires a "signed" court order to do the procedure without patient consent). Judge signs a court order, which is delivered at 9 Sunday morning, and blood is taken, 5 hours after the original request. Doctor is arrested, questioned, and released.
As the article points out, the police can demand and hospitals can take blood without consent if the life or death of a person may be involved, as was the case here. But the doctor does have a point; the law is unclear, the Supreme Court precedents were set before HIPAA became the law, and when in doubt, it's not unreasonable to err on the side of privacy. However, there was another step the doctor could've taken: take the blood sample, store it in a way that will preserve its evidentiary value (or test it as would be indicated), but don't deliver the sample and/or test results to the police until the court order arrives. That's not a completely square solution: you still have a potential claim for battery for taking the blood without an informed consent, and ordering the test may be considered a "use" of PHI that's not for treatment, payment, or healthcare operations (although that raises an interesting question itself: is the blood itself PHI, or is obtaining PHI by testing the blood a use?), but since there's virtually no risk in taking blood from a patient, it is SOP in emergency rooms to do so, and any treatment actually given to the patient in the ER might reasonably need the extraction and testing of the blood (although the testing for BAC might not be standard, that would still allow extraction and protective storage).
At the least, this case highlights the need to have clear policies if your operations ever involve police action or requests where time is of the essence. Even if time is not of the essence, you should have policies for disclosures to law enforcement officials, attorneys in litigation, and other reasonably anticipated legally-required or -requested disclosures.
According to the latest Strib story
(which unfortunately calls the law HIPA), charges have been dropped against the doctor. Still no outing of the doctor's name, which is probably appropriate. There is a real confusion in the law between HIPAA's requirements and law enforcement standards. While it's not an unreasonable search or seizure for the police to obtain a blood sample from an unwilling suspect if there's probable cause and evidence spoilation issues, it just might be a HIPAA violation. Add to that the fact that the police probably can't force
an unwilling doctor to take a blood sample if the doctor doesn't want to. This is definitely an area where HIPAA could have been better drafted.
Jeff [8:31 AM]
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