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Breaking News: Police Requests How Far is Too Far?

Shaw, Gina

doi: 10.1097/01.EEM.0000450840.17379.8d
Breaking News


It all started with a “routine” traffic stop. A New Mexico man named David Eckert was pulled over in the parking lot of a Wal-Mart in the town of Deming for failure to stop at a stop sign on Jan. 2, 2013. The officer patted Mr. Eckert down, and reportedly observed that he was standing stiffly and clenching his buttocks — making him suspicious that the man might be hiding drugs in his anal cavity.

The officer obtained a search warrant for Mr. Eckert's vehicle and his anal cavity, and over the next two days, Mr. Eckert unwillingly endured eight different anal probes, including two x-rays, three enemas, and a colonoscopy. They all failed to find any drugs, and this past January the city of Deming and Hidalgo County jointly settled a lawsuit filed by Mr. Eckert for $1.6 million.

Among those named in the suit (although not ultimately payers in the settlement) were two doctors at Gila Regional Medical Center who ordered and performed the procedures requested by police. According to court papers, police first took Mr. Eckert to the emergency department at a hospital in Deming (not named but probably Mimbres Memorial Hospital, the only hospital in town), where an emergency physician referred to only as “Dr. Ash” refused to perform the requested search, “as he opined it was unethical,” according to the complaint filed by Mr. Eckert.

The officers then took their prisoner to another hospital, Gila Regional Medical Center in Silver City. Robert Wilcox, MD, a general practitioner, was the attending physician in that emergency department. He ordered an abdominal x-ray, and when that was negative, he conducted a digital rectal exam over Mr. Eckert's protests. Then he brought in surgeon Okay Odocha, MD. Dr. Odocha's own digital rectal exam found that only stool could be felt in the man's rectum, but he ordered three successive enemas, followed by another x-ray, and then a colonoscopy under anesthesia. None of these procedures found any drugs in Mr. Eckert's body.

Neither Dr. Wilcox nor Dr. Odocha responded to requests for comment from Emergency Medicine News, but their responses to Mr. Eckert's suit made similar claims about their actions: that they “complied with all applicable duties of care” and “use[d] the skill and care that would ordinarily be used by reasonably well-trained and qualified [physicians] practicing under similar circumstances.”

Carlo Reyes, MD, said those claims and the entire story are shocking. “The physician's role is to treat a person's medical condition. In the emergency department, in particular, it's to evaluate for emergency medical conditions. We don't work for the police, and we shouldn't think of ourselves as agents for anyone else other than the patient who presents. Regardless of what a search warrant says, we as physicians are not required to comply if there is not a medical question that needs to be answered to stabilize an emergent condition,” said Dr. Reyes, a clinical instructor in the departments of emergency medicine and pediatrics at Olive View/UCLA Medical Center and a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA. Dr. Reyes also writes a legal column for EMN.

The Eckert saga sounds extreme, but it's not the first such case. Last year, a federal court upheld an unreasonable search and seizure ruling for a 2010 drug-related arrest in Tennessee where emergency physician Michael LaPaglia, MD, of Oak Ridge Medical Center, sedated a suspect to perform a rectal exam when he would not consent. Drugs were found in this case, but the court held that “no reasonable police officer could believe that, without direction from the police and over the clear refusal to consent by a conscious and competent patient, a doctor could lawfully go ahead and perform such a procedure. Even if LaPaglia was motivated by benevolent medical ideals, his actions in paralyzing and intubating Booker and performing a rectal examination without his express or implied consent constitute medical battery.”

Because of their role on the front lines, emergency physicians interact with police and receive these sorts of requests more frequently than other medical personnel, Dr. Reyes said. “The most common situation is when police bring drunk driving suspects to the emergency department for a blood alcohol concentration test. But most physicians would admit that, more often than not, you don't need a BAC to determine if you can medically clear someone. A BAC is usually for evidence, not for medical clearance. And it's reasonable for the physician to refuse to perform such a test if it's not needed for medical clearance.”

Similarly, police may ask an emergency physician to perform a tox screen for drugs. “Identifying if a person was on a particular drug might determine whether he is charged with a felony or a misdemeanor,” noted Dr. Reyes. “As emergency physicians, we have to ask ourselves: are we doing something to treat a patient or stabilize a condition or something that's primarily for the purposes of collecting evidence?”

That, of course, is a question for the physician's judgment. In a statement in the Tennessee case, Dr. LaPaglia argued that he did suspect that the patient had drugs in his rectum and acted out of medical necessity.

“I explained to him that at this point in the emergency room he really did not have a choice because if my suspicion was high enough to think that he had some sort of dangerous substance in his rectum, then it was my duty to get it out,” he said.

Cases like these underscore the lack of guidance for emergency physicians — indeed, all physicians — in medicolegal situations such as these. “We practice in an environment in which we don't know all the rules,” Dr. Reyes said. “Someone who hasn't really thought about it could easily be induced or coerced by the police to conduct an unreasonable search. But just as with health care regulations like HIPAA, EMTALA, and the Stark law, ignorance of the law is no excuse.”

He advises emergency physicians confronted with cases like these to always keep their duty to the patient uppermost in their mind. “My duty is to treat patients, and if the question being asked has nothing to do with that and is only for evidence, that's not my domain. Many times I've told the police that I'm here to treat the patient, not to get evidence for them, and they've accepted that,” he said.

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