An emergency physician recently told us a story of an unusual night visit from the police. “One night in our emergency department, the police brought in a person they suspected of dealing drugs,” he said. “They said they wanted an Ewald tube lavage because they alleged the patient swallowed evidence. When I refused, they got an on-call magistrate to come to the emergency department in the middle of the night—still in his pajamas—to present a warrant to me.
“When he got there, I gave him the Ewald tube and a basin and told him, ‘Here you go. The red plunger pushes the water in, and the blue plunger pulls it back out. Have fun.’ The magistrate left the ED with the police and the patient, and that was the end of it.”
Although the story may bring a chuckle, there are two key questions it raises:
- Must the physician do the search even if the patient does not consent?
- Will the physician be in violation of the warrant or a state statute for refusing to comply with the warrant?
Thankfully, the quick answer to both questions seems to be no. We couldn’t find any report of a physician being sued for not complying with a such a warrant.1,2 But because it hasn’t happened doesn’t necessarily mean it couldn’t. Here are some guidelines and background information you should know to avoid potential trouble.
State Codes and Laws
Some states have regulations regarding emergency physicians or others complying with warrants in search of evidence within body cavities and whether consent is required. For example:
- In Washington, RCW 10.79.080 uses the word “authorized” when discussing a warrant that seeks evidence through a body cavity search.3 It does not, however, imply that a physician is “compelled” to perform such a search.
- In Maine (as of 2003), Title 5, Part 1, Chapter 9, Section 200-G specifically concludes, “Nothing in this subsection requires a person authorized [italics ours] to conduct body cavity searches to conduct a body cavity search pursuant to a search warrant.”4
- In Tennessee, a physician complying with a valid search warrant is protected from liability “except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search.”5
The majority of state laws addressing body cavity searches are silent on the issue of a physician not complying with such a warrant. Being “authorized” is different from being “mandated.” Providing that the medical record adequately documents the medical reasons for the physician’s refusal to perform the search on a non-consenting patient, a judge would likely have little recourse against a third-party physician who refuses to perform such a search. (However, these examples may not hold true for all states; check with your hospital’s legal counsel for more information on your state.)
Regardless of whether your state has statutes that address physician adherence in body cavity evidence searches, there are some legal theories that members of ACEP’s Medical-Legal Committee say may keep physicians from being called upon to perform them. (Again, this advice is for discussion only; consult with your own legal counsel for specific situations.)