Utah Arrest Fallout: How Can Physician Leaders Address Conflicts Between Two Noble Callings?

By Rick Mayer | AAPL
September 6, 2017

A health care attorney suggests reviewing policies and clarifying training to avoid an incident similar to what occurred when a Utah investigator demanded a patient’s blood sample.

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Officer Jeff Payne is seen arresting nurse Alex Wubbles in an image taken  from police body cam video during the July 26 incident at University of Utah Hospital. | Salt Lake City Police Department

Nursing and law enforcement are noble callings. Recognizing that can serve as an opportunity for physician leaders to draw these professions closer, says a veteran health care lawyer.

Doing so could help avoid a repeat of the July 26 incident involving a Utah nurse and police officer, he says. Many in the health care community and others have expressed outrage after viewing video of the arrest of the nurse, who prevented the officer from drawing blood from an unconscious patient.

“This event certainly provides a unique opportunity for physician leaders to work with staff and local officials to address the daily occurrence in hospitals of tensions between caregiving and security, between privacy and enforcement.” says Jim Gilman, general counsel for Methodist Healthcare System in San Antonio, Texas.

Among the actions that should be taken, Gilman says, are reviewing hospital policies and training personnel to clarify those policies. He also suggests reaching out to local officials regarding “perceived needs and obstacles to law enforcement in the health care environment and how hospital policy fits within that reality.” 

Physician leaders are “uniquely” qualified to build that bridge when there are apparently conflicting obligations, he says. “They often are the most effective advocates of the needs of the patient while supporting the professional obligations of the entire care team,” he says. “The white coat and stethoscope commands comparable respect as does the uniform and badge.”

Begin with acknowledgement of common callings, he says. Acknowledge and show appreciation for police in protecting providers and patients through dangerous circumstances as well as efforts of clinicians in treating first responders and their families in urgent situations.

“The reality is that nurses everywhere not only provide care for patients, they also serve as advocates for patients who cannot speak for themselves,” Gilman says. “Law enforcement provides protection for all of us and many times service to the victims.” 

The fallout from the arrest at University of Utah Hospital in Salt Lake City was severe, if not swift. Since the video went public Aug. 31, new hospital policies were announced, city and university officials apologized to the nurse, investigations began, and the local newspaper’s editorial board called for the officer’s firing. The officer was fired from a part-time job as a paramedic Sept. 5.

Gilman says physician leaders should evaluate their organizations’ rules to confirm they support patient rights, and that related duties and obligations of clinicians are within the law. Training should illuminate whether the policies reflects a comprehensive position on applicable law or merely the organization’s position on “typical patient care circumstances.” 

Hospital processes should be reviewed to determine whether it is feasible to remove law enforcement and bedside nurses as the first interaction, Gilman says. That would have helped at the Utah hospital, which announced a change to allow only senior nursing supervisors to speak with police and to ban such conversations from patient care areas.

“My experience is that well-trained house supervisors are incredibly effective points of real-time communication with law enforcement and are able to place the process on the best possible path,” says Gilman, a faculty member for the American Association for Physician Leadership, as an instructor of the “Preparing for the CEO Role” course. “Similarly, these interactions should always occur outside of immediate patient care areas and can almost always occur without impacting patient care operations.”

In the video, Alex Wubbels, a burn unit burse, is seen calmly telling to Salt Lake City police Officer Jeff Payne that she would not allow the blood draw unless the patient is under arrest, there is a warrant or the patient consents, per hospital policy. The Supreme Court has ruled that a sample cannot be taken without a patient’s consent or a warrant.

Payne insists, although there is no warrant and the patient is not a suspect. Payne, who has been trained as police phlebotomist, believed he had "implied consent” under state law, according to reports.

Wubbels politely stands her ground as “a nurse trying to protect a patient.”

The dispute ends with Payne saying, “We’re done; you’re under arrest” and pulling Wubbels outside while she shouts, “I’ve done nothing wrong.” Payne says his supervisor told him to arrest Wubbels if she kept interfering. In a police report, he wrote that he took her outside to avoid causing a “scene.”  She was not charged with a crime.

More than a month later, Wubbels says she released the video – obtained by her attorneys through a public records request – partly because she was unhappy university police didn’t intervene.  University officials have apologized for that and announced that campus officers will receive additional training.

“This cop bullied me,” Wubbels says. “He bullied me to the utmost extreme, and nobody stood in his way. And that should have originally been the job of security and the university police, and they decided that when they showed up, they didn’t want to play for my team, and so they essentially put on the other guys’ jersey.”

Gilman understands Wubbels’ umbrage. He says hospital security should be trained in de-escalation techniques. As such, they can remain with and support hospital staff in a constructively verbal manner during such conflicts.

“I would not advocate physical obstruction of a police officer but would also never allow a police officer to isolate a staff member,” Gilman says.  “Hospital security can demand to be arrested and/or detained with the staff member.”

Gilman, who has practiced law for 23 years, much of it in health care, says he has been involved in several similar conflicts and was “frustrated” after viewing the video, but he says the circumstances are more complicated than they appear.

While the actions of the officer appear “utterly indefensible,” the nurse relied on hospital policy, which is not the last word for law enforcement -- even if the police department agreed to the policy, Gilman says.

Gilman cites circumstances in which police may obtain a sample without an arrest, warrant or consent: probable cause amid exigent circumstances and implied consent. It’s unclear whether exigency applies. And while Utah drivers give implied consent to “breath, blood and bodily” tests, there must be “reasonable” grounds the person is under the influence, he says.

“It is possible that the law enforcement officer did not discern this distinction,” Gilman says.

The officer likely relied on the “doctrine that all citizens have an obligation to follow the apparently lawful orders of police, rather than to resist them,” Gilman says. He exerted his “perceived authority” to obtain what he thought was appropriate under the law.

However, “the ultimate requirement of our Constitution is that police must behave reasonably,” he adds. “In this circumstance, handcuffing a nurse and throwing her into a squad car was not reasonable.”

Rick Mayer is a senior editor for the American Association for Physician Leadership.

 

 

 

 

 

 

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