The drawing of blood by health care providers for law enforcement purposes has been big news lately. 

In June, the North Carolina Supreme Court held in a case of first impression that North Carolina’s implied consent statute which authorizes police to direct the drawing of blood from an unconscious defendant suspected of impaired driving was unconstitutional as applied to that particular defendant as the police did not have a warrant, the consent of the defendant, nor any exigent circumstances beyond the natural dissipation of alcohol from the defendant’s bloodstream.  See State of North Carolina v. Romano, 800 S.E.2d 644 (2017).  

Last week, the video of the arrest of a Utah nurse who refused to draw the blood of an unconscious patient went viral, with patients and medical providers alike expressing outrage over the nurse’s treatment.  

What is a nurse or other medical provider in North Carolina to do when a law enforcement officer demands the withdrawal of blood from an unconscious patient?  North Carolina General Statute § 20139.1(c) answers this question.   The nurse does not need to evaluate the circumstances to determine the legal propriety, nor must the nurse demand a warrant.  The nurse need only determine that the blood draw may be done safely.  

North Carolina General Statute § 20-139.1 provides:

• A physician, registered nurse, EMT or other qualified person shall withdraw the blood sample or urine test as specified by a law enforcement officer, and no further authorization or approval is required; 

• The person withdrawing the blood or collecting the urine may require written confirmation of the law enforcement officer’s request before blood is withdrawn or urine collected; 

• The person requested to withdraw the blood or collect the urine may refuse to do so only if it reasonably appears that the procedure cannot be performed without endangering the safety of the person collecting the sample or the safety of the person from whom the sample is being collected; and

• The medical provider who determines that a sample could not be collected safely must provide a written justification for the refusal to the law enforcement officer upon the officer’s request. 

Thus, in North Carolina, a nurse must comply with the directive of a law enforcement officer to withdraw blood from an unconscious patient, unless the nurse determines that the withdrawal will endanger the safety of either the nurse or the patient.  If the courts later determine that the withdrawal was unjustified or illegal, the results of the blood draw may be excluded from evidence; however, the nurse, hospital and/or practice that employs the nurse may not be held criminally or civilly liable for following the officer’s directive, complying with the statute, and withdrawing blood using the applicable standard of care.  

The same rules apply even when the patient is conscious and actively refusing to submit to a blood draw.  See N.C. Gen. Stat. § 20-139.1(d2).  For instance, if an intoxicated patient comes in the Emergency Department and a police officer demands a blood draw, the nurse must do so, unless “it reasonably appears the procedure cannot be performed without endangering the safety” of the nurse or the patient.   If the intoxicated patient is combative, the nurse may understandably determine the procedure cannot be performed safely and may refuse to withdraw the blood, in which case the nurse should provide written justification for the refusal to the law enforcement officer upon request.   

What about HIPAA?   Doesn’t it protect the patient from the law enforcement officer’s directive to draw blood?  Not if state law requires the nurse to follow the officer’s directive.  HIPAA allows medical providers to disclose protected health information to a law enforcement official for a law enforcement purpose if the disclosure is required by law, as it is in North Carolina.  See 45 C.F.R. 164.512(f)(1)(i).  

The recent attention to this topic is a good reminder to hospitals to review their policies and procedures and communicate their expectations with their staff and with local law enforcement agencies before a conflict arises.