Social media is boiling over a shocking video where a police officer arrests an emergency room nurse because she will not allow blood to be drawn on a patient. Incredibly polite and professional nurse Alex Wubbel was roughed up, cuffed, and stuffed into a patrol car for conveying to the police officer her supervisor’s message that the hospital could not honor the demand of bullying Detective Jeff Payne. The reason was simple. As painstakingly explained to Detective Payne, the criteria (agreed upon by Payne’s own police department and the hospital) for drawing blood without informed consent from a patient were not met.
It started when a truck driver, who was not suspected of any wrong doing, was injured during a police hot pursuit of a different person. Badly injured, he was brought to Salt Lake City’s Utah University Hospital for care. He was sedated and unconscious, and thus incapable of providing informed consent for the blood draw when the police arrived. Detective Payne, nonetheless, demanded the blood draw. Here’s an expanded 19 minute video from another Officer’s body camera of the incident.
Some highlights with references to the time stamps on the video.
0.25: The body cam officer asks Payne why he doesn’t just get a search warrant. Payne states because he doesn’t have “PC” (probable cause). As the conversation continues towards the one minute mark Payne states he will arrest her if she continues to refuse and states he has never gone this far before.
5:05: Nurse Wubbel has her supervisor on the phone and presents to Payne a copy of the hospital policy. She explains Payne’s police department agreed to the policy with the hospital. She explains there are three things that allow a blood draw for the police: 1) Patient consent, 2) a warrant, 3) patient is under arrest. She politely explains none of those criteria exist. She submissively says, “I’m just trying to do what I’m supposed to do, that’s all.”
6:05: Wubbel’s supervisor on the speaker of her cell phone says to Payne “Why are you blaming the messenger?” Payne responds, “She’s the one who has told me no.” The supervisor says, “Sir, you are making a huge mistake right now because you’re threatening a nurse.”
6:15: Declaring “we’re done” Payne flips out. He forcibly drags Wubbel out as a sobbing Wubbel screams for help and screams “I have done nothing wrong.” She’s right. Hospital staff confront Payne saying she was doing her job. Payne roughly cuffs a crying Wubbel and forces a stumbling Wubbel into a police car.
9:40: Another officer shows up, apparently a supervisor. He pulls Payne aside to talk to him. Watching the video, I hope that prompts sanity to prevail, it does not.
10:30: Finished with talking with Payne the supervising officer attempts to calmly explain to a distraught Wubbel why she is wrong. The problem is, she is not wrong, he and Payne are. He attempts to convince her that while she was following hospital policy the police were following the law.
11:o5: Wubbel explains she was fulfilling her duty to her patient. Supervising officer says the patient was a victim the police are trying to help. While that may be true, it does not change the informed consent requirements.
12:05: Supervising officer tell Wubbel if they are doing wrong that there are civil remedies the patient has for that. That’s true. Those civil remedies (discussed below) would apply against the police, the hospital, and potentially Nurse Wubbel herself. Supervising officer falsely attempts to present this as just a risk for the police. It is not. He attempts to convince her to just allow the blood draw on the false promise that only the police will be sued if it is wrong to do so.
14:40: One of Wubbel’s coworkers explains to supervising officer that he has the hospital’s Privacy Officer on the phone to talk to him. Supervising Officer asks, “What does he know about this incident.” Coworker responds, “Just what we told him.” Supervising Officer dismisses this saying:
“Okay, so he doesn’t know anything, I don’t need to talk to him. Cause he’s going to tell me what your policy is and I understand what your policy is. I’m trying to tell you what I think is legal. Your policy right now is contravening what I need legally . . . there’s a very bad habit up here of your policy interfering with my law.”
I consider that last stuff from the supervising officer some of the worst of the video. Yes, Detective Payne is wrong, and he’s an ass, but supervising officer should have brought an informed, detached adult to the situation. Instead, he refuses to listen, won’t even talk to the hospital’s Privacy Officer, disregards that the hospital’s policy was worked out with his police department, and he is also dead wrong about the law and the liability involved.
Let’s start with the basics. Performing a medical procedure on someone without informed consent, or other legal justification, is a battery. This principle goes all the way to 1914 and the case of Schoendorff v. Society of New York Hospital. In the words of that court:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”
Battery is a crime and an intentional tort for which punitive damages are applicable. The hospital’s, and Nurse Wubbel’s, participation in this battery is not altered because the police wanted them to do it. In Birchfield v. North Dakota the United States Supreme Court in 2015 expressly held a probable cause warrant is required for police to perform a blood test on a patient without informed consent.
Officer Payne was demanding that Nurse Wubbel participate in the battery of a helpless and unconscious patient. This was nothing less than that. Supervising Officer then attempted to convince her that participating in the battery was the right and legal thing to do. Supervising Officer then groused that hospital’s policy, which was also the police department’s policy and also the law, was interfering with his law.
What is a private citizen to do when a police officer orders them to violate the law? Sadly, they must do what Nurse Wubbel did. They must refuse to break the law even if it subjects them to arrest, as the abusive Police Detective did in her case. If the citizen is right, the law will sort it out. Nurse Wubbel is a hero for standing her ground against unlawful demands imposed by officers of the law.
The law did sort out right in this case. Wubbel was released without charges. The police have admitted they were wrong. Officer Payne is no longer on blood draw detail and the department has conducted retraining regarding the issue. The police and even the Mayor have apologized.
But you better be sure you are right. If you are wrong, the force of the law can be applied against you. When defying the law enforcement officers you had best be on firm ground. You had best be sure your interpretation of the law is one the courts will share.