September 7, 2017

Lessons Learned from Arrested Utah Nurse

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The Washington Post (and later, many other media outlets) recently called our attention to an incident in Utah wherein a courageous nurse stood up to a detective who was about to violate a patient’s rights.

The detective with the Salt Lake City Police Department insisted that the hospital draw a blood sample on a patient who was injured when a suspect being chased by police struck his truck. The nurse correctly explained that absent the patient’s consent, a warrant, or the patient being under arrest, it would be improper for the hospital to comply with the officer’s demand.

Tellingly, during the exchange, one of the officers asked, “so why don’t we just write a search warrant?” The detective replied that they “don’t have PC,” meaning that they lack the probable cause necessary to obtain a warrant. In other words, the officers knew that they didn’t have authority to get the blood they were seeking. It appears that they expected to bully their way into getting what they wanted.

The University of Utah Hospital staff, including the nurse, Alex Wubbels, appear to have acted admirably, as well as calmly. The nurse was polite and patient, repeatedly explaining to the officers that they needed to produce a warrant or patient consent. The U.S. Supreme Court ruled last year that the Fourth Amendment prohibits police from taking blood without a warrant. The officers ultimately threatened to arrest the nurse, and then proceeded to do just that, handcuffing her and taking her to a squad car.

One line in the video is easy to miss. The officer says, “I’ve never gone this far.” While we can’t know exactly what the officer means, I strongly suspect that he wasn’t used to someone standing up for the rights of a patient.

Ms. Wubbels deserves tremendous credit. What she did took courage. There was tremendous pressure on her to relent to the officers’ demands. If you watch the entire video, you will see that the officers kept the pressure up for a long time after they cuffed her. The officers eventually calmed down, but persisted, arguing that if they were acting improperly, the justice system would sort the problems out later.

That sort of “act first, ask questions later” approach may sound convincing, but the harm to the patient would already have been done. Later in the video the officer states that “your policy right now is contravening what I need,” also noting that “your policy is interfering with my law.” Those two statements are very different. The first one isn’t relevant. Officers aren’t entitled to get whatever they need, only what the law allows. The second statement, if true, would be more significant. Hospital policy can’t take precedence over the law. However, here, the policy was drafted with the law in mind, and it was the officer, not the hospital, who was disregarding it.

There are several lessons we can learn from the episode. First, it is important to train staff and provide clear policies about interactions with police before a problem arises. The hospital’s conduct in this case was flawless. They were prepared for the situation and responded exactly as I would recommend. The problem here was caused by the officers.

It is unreasonable to expect the care team to know the law as well as this team did. The staff should know, however, to review policy and then, when necessary, to call for advice. That is exactly what happened here. Blindly adhering to policy can be problematic. Undoubtedly, some hospitals have policies that are inconsistent with the law. Moreover, even the best policy won’t consider every possible factual scenario. The nurse here escalated the request, involving hospital management in the situation. Note that this situation wasn’t life or death, and there was time to sort things out. In a case like that, a call to the hospital’s office of general counsel is also wise.

Second, again, the nurse remained remarkably calm. When interacting with representatives of the government, keeping your emotions in check and focusing on rational argument is essential. The nurse’s colleagues also stayed calm. In most situations, that would have allowed a rational resolution. Unfortunately, here the officers didn’t appear to act reasonably.

The third lesson relates to documentation. Fortunately, this entire episode was captured on an officer’s body camera. But there is something that the nurse’s colleagues could have done to help ensure that the situation was documented accurately: film it. Unfortunately, there have been a number of instances whereby officers have insisted that filming police “interferes” with them. That is ostensibly untrue. Just as silently watching an action doesn’t prevent it, recording it is not interference. Citizens can record the police. The American Civil Liberties Union (ACLU) has an app called Mobile Justice that allows users in 17 states and the District of Columbia to record interactions with the police. When you finish the recording, the app automatically uploads the video so that if the police mistakenly assert that you aren’t allowed to film, and seize the phone, the video is preserved. The app is available in iTunes and Android.

It takes courage to tell someone with a badge and a gun that they are wrong. To preserve our rights in a democracy, however, that courage is necessary. Alex Wubbels did us all a favor in demonstrating exactly how to respond to overly aggressive officers.

If you would like a laminated card explaining your rights and responsibilities as you interact with government agents, please email me at dglaser@fredlaw.com.

Excerpts of the video can be seen online here. The entire 19-minute body camera clip can be seen here.

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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