May, 2016
By Charles A. Pilcher MD FACEP
A police officer arrives in the ED with a handcuffed prisoner in tow, a suspected “body packer.” The officer presents the emergency physician with a search warrant signed by a judge authorizing the physician to perform a body cavity search to determine the presence of illicit drugs. If the prisoner, now patient, refuses the search, must the physician comply? And what is the chance of a physician being sued for refusing to do such a search?
To answer the second question first, no lawsuit or other sanctions against a physician refusing to perform a body cavity search on a non-consenting patient when presented with a valid search warrant was found in researching this “Perspective.”
State codes and laws:
- In Washington State RCW 10.79.080 uses the word “authorized” when discussing a warrant that seeks evidence through a body cavity search. It does NOT imply that a physician is “compelled” to perform such a search.
- In Maine (as of 2003) specifically states “Nothing in this subsection requires a person authorized to conduct body cavity searches to conduct a body cavity search pursuant to a search warrant.”
- 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.”
The majority of state laws addressing body cavity searches do not address the situation in which a physician does not comply with a warrant for a body cavity search. The word “authorized” implies nothing in the way of a mandate. Providing the chart adequately documents the medical reasons for the physician’s refusal to perform the search on a non-consenting patient, it would be unlikely that a judge would have a valid course of action against a physician. Further, were a law to state that “upon presentation of a valid search warrant to a health care provider requesting a body cavity search, that provider must perform the requested search,” medical boards and associations would most certainly object, insisting that physician judgment in the doctor-patient relationship be allowed and that “hold harmless” language protecting providers be provided in any such legislation.
Outside opinions:
During research for this article, several MD attorneys were consulted and offered the following non-binding opinions:
- A physician cannot be made an agent of the state for the purposes of law enforcement. If a physician is not advancing the healthcare of a patient, then physicians have no business performing that activity.
- A warrant that does not name a specific physician or other healthcare professional to perform the search is probably not enforceable.
- There is a concept called “agency” in which a third party (physician) might not be able to be compelled to participate in the enforcement of such a warrant. Consider the recent request by the federal government for Apple to de-encrypt a terrorist’s iPhone.
- I think it would be considered assault and/or battery to do perform such an examination on a non-consenting and otherwise stable patient.
- As physician not appointed by the court to perform specific acts of retrieval or testing on suspected criminal cases is not obliged to follow a warrant for a body search. If the patient is not showing any signs of complications/body injury either drugs stuffed in rectum/razor in vagina and if patient is not incapacitated to make their own medical decisions and doesn’t consent to such physical examination we are not medically or legally obliged to follow the requests from such warrants. In such situations, I think it would be reasonable to redirect law enforcement to an appropriate jail clinic where a physician with legal jurisdiction for such arrestees can perform the exam.
- If a patient is competent, we cannot force an exam on them. This is the function of law enforcement.
- If there is no medical reason for a body cavity search, the physician should not do this without the patient’s consent, even with a warrant. The physician could potentially be sued for medical battery, and ethically I think it is a problem to force any type of exam on the patient.
- With no medical reason for the search, a patient who consents might be argued to have been coerced into consenting, for example if handcuffed to the bed with 2 police officers standing by. In the absence of symptoms and a medical indication for the exam, a refusal to do the exam is appropriate. But the patient must be advised of potential risks such as perforation, drug absorption, etc. and offered the exam and/or x-ray. A positive x-ray and an honest conversation about risks might cause a patient/arrestee to reconsider.
Guidelines:
- Any immediate emergent life-threatening situation supersedes patient consent or the existence – or not – of a search warrant and must be addressed.
- A medical screening exam is necessary and should be attempted to rule out an emergency medical condition in order to comply with EMTALA. This may of course be limited if the patient refuses ANY form of medical care. Document the refusal and have it witnessed.
- Determine and document the likelihood that the patient may indeed be a “body packer” or “body stuffer” and whether or not there is a reasonable possibility that a “body stuffed package” is an immediate concern. Recommend removal of any package the patient might be carrying.
- Advise the patient of non-invasive options for locating any package he/she might be packing, such as x-ray, ultrasound or other imaging modality. Document this.
- Document the patient’s consent, if any, to be treated within any parameters he or she allows. Obtain imaging if he/she consents.
- Document the patient’s refusal to agree to any or all such examination or treatment. This should be a specifically worded document for this specific patient. Obtain the patient’s signature if possible and have a witness also document the conversation – and any refusal.
- Document and have witnessed that the patient has been advised of possible medical consequences of body packing, should he or she actually be the carrier of such a package. Several incidents of death from such activity have been recorded.
- Determine and document the risks of performing a body cavity search on a non-consenting and presumably uncooperative patient. The risks might include: a) accidental injury due to patient movement, b) rupture of any existing package with spillage of contents, c) harm from physical and/or chemical restraints that may need to be used to complete the procedure, d) aspiration, e) injury to staff and e) the risk of violating medical ethics by examining a non-consenting patient, a search warrant notwithstanding. [A physician refusing to do such a body cavity search may do so with at least the implicit approval of the AMA’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.”]
- If the warrant-authorized search or any portion thereof is NOT going to be done, advise the accompanying officer of the MEDICAL basis for your decision and document that basis (see number 7 above). Not WANTING to do such an exam for personal reasons is insufficient grounds for a physician not to comply with a valid search warrant, especially if the patient consents.
- Should the MSE eliminate the presence of an emergency medical condition and the patient does consent to the search, clarify who is responsible for charges incurred.
- Consult (or at least inform) your hospital attorney and risk management department whenever presented with such a search warrant.
Finally, police may have other options such as a jail nurse performing the search, observation in jail and/or letting mother nature take its course in the case of a GI tract package.
And if the patient consents, that’s a totally different situation and the exam should be done.
Feedback on this article is appreciated.
Additional References:
1. USA v. Booker, Court of Appeals, 6th Circuit [Physician not immune from prosecution for search done at request of law enforcement WITHOUT a warrant.]
2. Bell v. Wolfish, US Supreme Court. (Body cavity searches by law enforcement personnel allowed.)
3. USA v. Gray, Court of Appeals, 5th Circuit [4th Amendment protects personal privacy and dignity against unwarranted intrusion by the State, even with a search warrant.]
4. FindLaw Blotter, Brett Snider, November 7, 2013https://www.findlaw.com/legalblogs/criminal-defense/when-can-police-conduct-a-body-cavity-search/
5. FindLaw Blotter, Brett Snider, Updated March 21, 2019 https://www.findlaw.com/legalblogs/personal-injury/nm-man-sues-over-multiple-anal-cavity-searches/