Friday, May 31, 2013

Blood Draw Debacle

O’Brien v. Synnott, 2013 VT 33

At its most basic level, summary judgment is a way for a trial court to say, “So what?”  If the facts of a case don’t support a claim or defense, then the trial court can dispose of the matter without trial or further fanfare.  One of my favorite college professors used to say: “There are two correct answers when it comes to law: ‘it depends’ and ‘judicial economy.’”  The concept of summary judgment is intimately related to the latter “correct answer.” 

Summary judgment is granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.  That’s the kind of phrase we memorize when we’re fresh-hatched baby lawyers; a phrase that you’d incorporate into a Chatty Cathy—Lawyer Edition. 

But what does it really mean?  Simply put, “no genuine dispute of material fact” means that neither party disputes the significant facts of the case.  It doesn’t mean there are no factual disputes; it just means that all the facts on which the parties agree (or have conceded to) support or don’t support a claim or defense, and therefore require the court to rule only one way (that’s the matter of law piece).   

To ensure fairness in application, the court is required to view any contested facts in the light most favorable to the non-moving party’s claims or defenses.  The standard of review is the same at the trial court and appellate levels.  

This brings us to today’s case.  The present appeal is—you guessed it—from a trial court’s ruling on a motion for summary judgment.

Here’s the backstory.  Plaintiff was in a vehicle outside a convenience store when an on-foot police officer tried to stop him for erratic driving.  This apparently prompted Plaintiff to drive into the police officer.  So the police officer discharged his gun into the car and hit Plaintiff in the lower back.   Plaintiff drove off and after his car stops, the police took him to a hospital for treatment.

Here, the standard of review becomes important.  Facts are viewed in the light most favorable to the non-moving party.  This means we get Plaintiff’s version of events. 

In the emergency room, when a police officer requested a sample of Plaintiff’s blood, Plaintiff refused.  Later, Plaintiff was in a recovery room when his nurse left.  A group of officers again asked him for a blood sample.  When Plaintiff refused, the officers held him down, covered his mouth, and tried to take the blood by force, but they’re unsuccessful. 

Then the nurse returned and drew Plaintiff’s blood.  But according to Plaintiff, she bamboozled him: he thought she was drawing blood as his nurse—as a medical provider—when she was really planning to hand it over to the police. 

So Plaintiff sued the nurse and the hospital for battery (the blood draw) and negligence (leaving him alone with the police); both parties filed motions for summary judgment.  Defendants argued that Plaintiff faieds to support his claim of medical malpractice with expert testimony and that 23 V.S.A. § 1202 provides consent for the blood draw.  Plaintiff countered that he didn’t need expert testimony to support a battery claim and that § 1202 applies only to law enforcement officers.

The trial court agreed with Plaintiff on the expert testimony requirement: Plaintiff alleged battery and negligence, not medical malpractice.  The trial court concludes that there aren’t sufficient facts to determine whether § 1202 applies.

But the trial court held that plaintiff’s battery claim fails as a matter of law because Plaintiff didn’t object to the blood draw.  As the trial court sees it, the nurse didn’t know that the police request was improper so her actions were justifiable.
The trial court also held that Plaintiff’s negligence claim failed.  There was no reason for the nurse to know that the police officers would attack Plaintiff if they were left alone in a room with him, and so there’s no violation of the duty to protect a patient from harm by third parties.  Trial court granted defendants’ motion for summary judgment.     

On appeal, the SCOV takes a fresh look at the case, applying the same standard as the trial court.  The SCOV begins its analysis by noting that “the facts here are unquestionably in dispute.”  The question then becomes whether under Plaintiff’s version of the facts, Defendants are entitled to judgment as a matter of law. 

The SCOV deals with Plaintiff’s negligence claim in short order, reasoning that even with the facts as alleged by Plaintiff, the nurse and hospital have no duty as a matter of law to protect Plaintiff from a third-party attack without such an attack being reasonably foreseeable.  In other words, the hospital and the nurse cannot be held responsible for the police officers’ unanticipated actions. 

The SCOV begins its analysis of the battery claim by noting that a procedure performed without consent can be a battery, but that consent negates any battery claim. 

Defendants’ first argument, more or less, is that the circumstances imply Plaintiff’s consent: the police had requested a blood sample, the nurse used a special labeling procedure, and Plaintiff didn’t object.  This argument, the SCOV says, fails because it requires making inferences in Defendants’ favor that can’t be made at the summary judgment stage.  As the SCOV explains, Plaintiff consented to medical treatment, but not a nonmedical blood draw for evidentiary purposes.           

Defendants’ second argument is more or less a public-policy argument: those providers who draw blood at the request of law enforcement should be immune from civil liability.  The SCOV notes that this is a departure from the common law, and acknowledges that there are substantial policy rationales supporting defendants’ argument—including the authorization only of specified medical personnel to perform evidentiary blood draws.  But the SCOV ultimately determines that—in the context of a nonconsensual blood draw—the limits on civil liability are best left to the Legislature. 

 The SCOV further notes that the Legislature has limited civil and criminal liability for medical personnel in certain DUI-blood-draw situations (such as when a person requests a second test), but not in this situation.  Because there’s no applicable statutory immunity, the SCOV reverses the trial court’s summary judgment on the battery claim.  

And that’s the cue for hospital administrators to start calling their legislators.  This will likely be “one to watch” during the next legislative session.  

Until then, your blood is safe from authority. 

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