Medical privacy and the fourth amendment
A doctor refused to draw blood from a homicide suspect because the suspect did not consent. Obviously unclear on the concept of the fourth amendment, the police arrested the doctor. Eventually, the police got a warrant and a doctor performed the test. Says one policeman:
The five-hour delay could have “a serious impact on the case,” Stanek said, because the delayed blood test won’t provide an accurate gauge of the suspect’s blood-alcohol level at the time of the stabbing.
I’m so sorry that fourth amendment is such an inconvenience. That’s pretty abysmal.
The doctor who was arrested was following the hospital’s privacy policy.
August 18th, 2004 at 10:10 am
Forget the fourth amendment, how about the thirteenth amendment as regards the doctor. It’d be an interesting argument for the cops to explain pressing the Doctor into the involuntary servitude of doing their bidding against the doctor’s free will.
The fourth amendment only protects the suspect against unreasonable, warrantless searches.
If this is to be such an important part of police work then the cops should have someone on their payroll be trained/licensed as a phlebotomist, instead of going out press gang stlye and forcing members of the medical community to do their work for them.
August 18th, 2004 at 2:30 pm
Comedian’s right about the Fourth Amendment, which has no application here. The police had a right to demand the order, and the doctor was being a jerk by refusing to cooperate. Whether his jerk-ness also made him a criminal remains to be seen.
If there had been a real Fourth Amendment problem, that would be for the police to worry about, and for the courts to sort out later if they didn’t. It’s not the doctor’s call. As a private citizen, he’s not subject to the Fourth Amendment anyway.
Comedian’s alternative Thirteenth Amendment argument is uncommonly silly.
August 18th, 2004 at 2:45 pm
Obviously, the doctor was following company policy.
That aside, the police had no warrant to blood test the suspect. I also don’t see probable cause as being applicable to a blood test if he’s a suspect in a stabbing. Sure, being drunk/drugged may affect his state of mind but being drunk does not prove he stabbed anybody.
I can’t buy the police having a right to force the issue without a warrant.
FWIW, the police are not pressing charges against the doctor.
As a private citizen, he’s not subject to the Fourth Amendment anyway.
I think a doctor being forced by an agent of the state would violate the fourth amendment. After all, the police seem to me to be engaging in an unwarranted search and an unreasonable one.
August 18th, 2004 at 3:40 pm
The police were attempting to make the doctor perform a procedure thats results would be used against the man. The man did not consent to this procedure.
I see three things wrong here:
Trying to take by force evidence of a very personal nature that would be used against the man.
Attempting to press the doctor into service of the state against his wishes (however briefly that service may be)
Attempting to use the doctor as an agent of the state for the purpose of forcibly taking evidence from aperson who did not consent.
The courts have ruled that among other things blood alcohol tests are not subject to the 4th or 5th amendment’s protections. In a word: bulshit. The courts have sided with the state on this matter & incorrectly. There is no legitimate argument that the results of a persons’ blood test cannot be considered that persons property or that because the state has a compelling interest it trumps a persons Right to privacy & a persons Right to not be forced into self testimony.
Given that I can understand & appreciate why the doctor refused since he would have been a material accesory to the police & the judge in question riding roughshod over the man’s Rights.
Also the cops cannot force a person to perform a service for them of this nature. That would constitute a form of involuntary servitude just the same as if a cop forced me to play a song for them despite my refusal to do so.
As for the doctor being a jerk, i disagree. The cops & the judge were beings jerks & that’s putting it politely. If the doctor was being a jerk siomply because he chose to follow his priciples in the face of unreasonable & immoral demands on the part of the state, then we definitely need more jerks in the world.
I also disagree with the idea that a persons place is not to question an order from an agent of the stae, that it’s rather for the courts to sort out. I’ll give you a little benefit of the doubt Xrlq & assume your statement is the result of some misguided assessment of the rule of law & how each person should behave in accordance with that, but it doesn’t seem far fethed to ascribe the motivations as a desire to increase job security on your part. Like I said though, I’ll give you the benefit of the doubt on this one.
Now I will agree that a private actor is not bound by the 4th or any other amendment as a matter of law. However when pressed into service for the state his status as a private actor is questionable.
If a few cops told a person to walk up to a protestor & steal his sign a compelling argument could be made that the person who ated on the cops demands was not acting as a private citizen but rather an agent of the state i thta nstance & therefore would run afoul of the same restraints placed upon the cops. Similarly the cops demanding the cdoctor draw blood despite the man’s refusal could be seen as a non-private action. Whether courts would view it this way is debatable, but if I haven’t clued you in before I have disdain for the courts simply because they tend to side with the states interests over those of the individual in cases such as this. Just because the state can argue that it realy has to know or do something is not sufficient for a disregard of a person’s Rights, but many courts simply cannot grasp the idea that the states claims of need are not sufficient justification for disregarding individual Rights.
In any case the doctor acted appropriately – it was the cops & the judge in question who should be reprimanded.
One last thing: the cops had no Right to demand the order. The apperently had the muscle to enforce it, but the only Rights involved were those of the man’s that were violated when evidence of a personal nature was taken from him without his consent, & those of the doctor who was punished for not doing the states bidding despite a lack of any legal or moral obligation for him to do so.