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So the police have a warrant…. does that compel the physician to help execute it?

Posted on by Dissent

Decades ago, while teaching emergency medical techniques to police and fire department personnel, a volunteer ambulance worker asked us what he should have done when a police officer on the scene ordered him to do something that he felt was wrong from an emergency medical standpoint. “He threatened to arrest me if I didn’t comply, but what he wanted was wrong for the patient” he said.  “You have to follow the police’s orders,” said the senior instructor for the course, herself a police sergeant.  “Screw that,” I said, “You do what’s right for the patient and if you get arrested, you get arrested.” Was I on solid legal ground telling medics to ignore orders from a cop? Possibly not, but when it comes to conflicts between law and medical duty of care, medical ethics trumps law in my book. But how many doctors feel free to refuse a police request or order? Not enough, it seems. 

By now, I expect that most people are aware of a disturbing case in New Mexico first reported by KOB.  David Eckert is suing the police, a deputy district attorney, a medical center, and two doctors for subjecting him to repeated digital rectal examinations, multiple enemas, stomach and chest x-rays, for making him defecate in front of the police and medical personnel so they could search his stool for drugs, and for then performing a colonoscopy under general anesthesia.

David Eckert did not request those medical procedures. Nor did he consent to them. So how did this happen?  Why did he have to go through such degrading and invasive procedures and why did the two doctors cooperate?

According to the complaint filed in federal court and media reports, it all started with Eckert being pulled over for not stopping at a stop sign. From there it rapidly devolved into a police officer becoming suspicious  based on his observation that Eckert’s hand was shaking as he handed him his license and registration. The officer also observed that Eckert allegedly  didn’t make consistent eye contact with him, and he was standing erect, perhaps clenching his buttocks. So they brought in “LEO,” a drug-sniffing dog that isn’t currently certified and the dog alerted, and then it just got worse and worse, with law enforcement obtaining a warrant to search Eckert’s person – including anal cavity – for drugs, based on an application that many attorneys find flimsy (cf, this commentary by Ken White with links to relevant documents). One of the bases for the warrant was that another  officer informed the officer applying for the warrant that Eckert was “known to” hide drugs in his anus, a point reiterated by Deputy District Attorney Daniel Dougherty in his response to Eckert’s  lawsuit. His claim may be partially confirmed by a Las Cruces Sun-News news report that they found several court records of drug cases involving Eckert, some of which have been dismissed.   A 6th District judge, identified on Scott Greenfield ‘s blog as Daniel Viramontes, helpfully signed the warrant to search Eckert’s person without limiting the scope of any body search  that “include[s] but not [is] limited to his anal cavity.”

With Eckert detained (but not arrested or charged and not allowed to make a phone call) and with warrant now in hand, the officers took him to the Deming emergency room  where an attending physician, identified in the complaint as “Dr. Ash” refused to perform the digital rectal examination, reportedly because he deemed it “unethical.”

Not to be deterred, the police, with Eckert still in their custody, went to another hospital in another county, Gila Regional Medical Center, where two doctors – Robert Wilcox, MD and Okay H. Odocha, MD – cooperated with the officers’ request to execute the warrant.

There has already been much discussion on the web about the validity and legality of the warrant, and I will leave it to those with knowledge of Fourth Amendment law to discuss those points (cf posts by Orin Kerr,  Ken White, and Scott Greenfield, for starters). What I want to focus on is why one doctor refused to cooperate on the basis of ethical considerations while two other doctors cooperated.  Did the two doctors at Gila Regional Medical Center violate medical ethics or New Mexico’s standards of care for physicians?  What follows is strictly my opinion:

Healthcare professionals have a duty to first, do no harm to their patient and to respect patient rights of consent, dignity, confidentiality, and privacy. The moment Eckert was admitted to Gila Medical Regional Center, he was entitled to patient protections.

If there had been reasonable suspicion or any evidence that Eckert might have drugs in his body where a balloon could burst and the drugs could kill him, I suppose a case might be made that the doctors’ actions showed regard for the health and safety of the patient, but of paramount importance, the patient was repeatedly refusing consent. Even if you found it ethical to perform a simple x-ray (and I do not find even that ethical in the absence of consent), how do you ethically justify more invasive, degrading, and risky procedures?   To put it bluntly, I find no ethical justification for what was done to Mr. Eckert.

But does the American Medical Association code of ethics address cooperation with warrants? Based on my reading of the AMA’s ethics code and my conversation with a member of their ethics council, it turns out the code doesn’t really give physicians specific guidance, and that this would fall under the “general principles.” For those of you who have never read the AMA’s ethics code, here are the general principles:

Principles of medical ethics

I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.

IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

V. A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.

VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

IX. A physician shall support access to medical care for all people.

I think Principles I, III, IV, and VIII apply to this situation. I also think the AMA’s opinion on torture should apply, and I’ve emphasized a few words in their statement, below. You may want to underscore additional words.

Opinion 2.067 – Torture

Torture refers to the deliberate, systematic, or wanton administration of cruel, inhumane, and degrading treatments or punishments during imprisonment or detainment.

Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened.

Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue. Physicians who treat torture victims should not be persecuted. Physicians should help provide support for victims of torture and, whenever possible, strive to change situations in which torture is practiced or the potential for torture is great. (I, III)

Issued December 1999.

So what were Drs. Wilcox and Odocha thinking? Did they reflect on whether cooperation with the warrant was ethical absent consent from the patient? Were they under the impression that they had to comply with the warrant? Did they read the warrant carefully or question whether the warrant really permitted general anesthesia and a colonscopy? Did they ever think, “Hey, this has gone too far and I will not be part of putting my patient through this to satisfy the police’s suspicion?”  It is important to note that in their responses to the lawsuit, both doctors admit they were acting at the request of law enforcement, and Dr. Wilson stated that he understood the police officers’ requests to him to be consistent with executing the warrant. A “request” from law enforcement does not have the force of an order from a court specifically directing the doctor to perform specified procedures. Nor is it a substitute for informed consent from a competent patient.

So does a warrant compel any doctor handed a warrant to comply? I don’t think so, and Dr. Ash seemingly believed he could refuse to cooperate on ethical grounds. Did Drs. Wilcox and Odocha recognize that they could have refused to cooperate or did they believe their conduct was ethical even though the patient was reportedly refusing?

Eckert has filed a malpractice complaint against both doctors with the New Mexico Medical Board (that complaint should have been decided before any malpractice lawsuit, according to the doctors’ responses to his lawsuit).  In the complaint to the medical board, Eckert’s attorneys note that medical records (which I do not have access to) show that Dr. Odocha used the warrant as a substitute for informed consent. If that is what happened, then that’s problematic, as I see nothing in the ethics code that gives physicians the ability to substitute others’ consent for a competent patient’s informed consent.

I realize that the doctors will not be able to really discuss their thinking with me at this time because of the litigation, and it’s important to hear what they have to say about their thinking on this issue. But in any event, I think this case should serve as a wake-up call for the AMA and states that they need to offer more guidance to doctors about the interface between their ethical obligations and law enforcement.  As Mark Bennett notes on his blog, this is not the first case of its kind. There was a similar case in Texas involving Dr. Emmerette Flynn. Inspection of Dr. Flynn’s license status in Texas reveals no indication that the Texas Medical Board ever took any action against Dr. Flynn, and I wouldn’t be surprised if New Mexico takes no action against Drs. Wilcox and Odocha other, perhaps, than to review ethical guidelines if they conclude that the doctors did not fully comply. But since this is apparently not the first case of this kind in Hidalgo County, I’d really encourage the New Mexico Medical Board to issue some guidance for physicians sooner rather than later and to inform doctors what they should do if law enforcement shows up with a warrant and the patient refuses consent.

 Okay, all you lawyers out there can use the Comments section to tell me how I’m wrong legally. It’s okay, because like Hebrew National hot dogs, I answer to a higher power – my ethical compass. 

Update: Attorney Mark Eckwenwiler tells me I’m not wrong in thinking the warrant didn’t compel the doctors: