Olathe Doctors and nurses who refuse to draw blood from unwilling patients involved in serious accidents suspected to be alcohol-related could face jail time under a policy being developed by Johnson County prosecutors.
District Attorney Phill Kline said his office would try to get a search warrant for the blood from a judge over the telephone. But if that wasn't possible within two hours of the accident, he said law enforcement would expect health workers to hand over the blood anyway or be arrested.
"My policy is, we are not going to back down," Kline said. "We are going to get the evidence."
Kline said state statutes back him up, and officials in other counties said they've used that justification in the past.
But some hospital leaders, while saying they are willing to work with Kline's office as best they can, said they are also bound by federal privacy laws that could prevent them from taking blood samples from patients who refuse treatment.
"We are working diligently to figure out a way we can meet the needs of law enforcement and comply with all regulations and standards," said Dennis McCulloch, a spokesman for the Kansas University Hospital.
The policy has its roots in a January traffic accident where a woman ran a red light in Overland Park and hit another car, seriously injuring two people. The police officer who escorted her to KU Hospital in Kansas City, Kan., said he smelled alcohol on her breath but the woman refused a blood-alcohol test.
Assistant district attorney Patrick Carney, who leads the county's traffic unit, said the office previously had a policy of trying to "coax" a sample from suspects but giving up if they refused. Officials would then attempt to get a conviction without the blood evidence, which was possible albeit difficult.
But Kline's top deputies, Eric Rucker and Stephen Maxwell, said state statutes required the blood be drawn within two hours of the accident. Hospital workers drew the blood, Carney said, but only after prosecutors got an oral warrant from a judge and had threatened the workers with arrest.
Carney said the woman's blood-alcohol level was 0.14 percent, or twice the legal limit, and she pleaded guilty on March 30. It was her fourth guilty verdict for driving under the influence.
Debra Vermillion of Shawnee Mission Medical Center said she was surprised the district attorney's office was still considering arrest, even if a hospital honored search warrants from a judge by phone.
She and McCulloch said their hospitals must abide by the Privacy Rule issued in 2002 by the U.S. Department of Health and Human Services to implement the Health Insurance Portability and Accountability Act of 1996, as well as standards developed by the Joint Commission on Accreditation for Healthcare Organizations.
"They (patients) have a fundamental due process right to refuse medical treatment," Vermillion said.