Attempt to remove bullet leads to lawsuit

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Sept. 8, 2008.

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The middle of 19-year-old Joshua Bush's forehead holds a much sought-after, partially fragmented 9 mm bullet, just under the skin.

Police in Port Arthur, Texas, claimed they needed the slug to link Bush to an armed robbery and attempted murder charges. Authorities obtained search warrants to have the bullet surgically removed.

Now the latest twist in the search for the alleged evidence has Beaumont, Texas, general surgeon David E. Parkus, MD, in the middle of a case testing the boundaries of liability, medical ethics, criminal justice and civil rights.

Bush is suing Dr. Parkus for medical battery after the surgeon operated on the teenager in October 2006 in an attempt to retrieve the bullet. One of those search warrants had authorized Dr. Parkus to perform the nonemergency procedure.

But Bush claimed he did not consent to the "invasive surgical procedure," according to the lawsuit filed July 18 in a Jefferson County trial court. He accused Dr. Parkus of "offensive physical contact" when he "cut into [Bush's] forehead with a scalpel," despite the teen's verbal protests against the surgery. Bush also is suing the hospital for allowing Dr. Parkus to do the surgery against Bush's wishes.

The scenario has all the ingredients of a television drama.

The case stemmed from a burglary and shootout at a used car lot in which police allege Bush participated with other suspects on July 21, 2006. The lot's owner told police he fired back at a male who shot at and threatened him from a nearby alley.

Days later, police arrested Bush, who confessed on video to being involved in the theft but denied any knowledge of the shootings. During the deposition, an officer inquired about the swelling and bruising he noticed on Bush's forehead and right eye. Bush responded he was elbowed in a basketball game.

Authorities later discovered that Bush checked in to the emergency department at the University of Texas Medical Branch in Galveston on Aug. 1, 2006, for a gunshot wound to the head. Bush told the hospital he was struck by a stray bullet while in his apartment. X-rays revealed a 9 mm slug -- believed by police to match that of the car lot owner's gun -- lodged in the soft, fatty tissue of Bush's forehead. According to legal documents, Bush said he did not have the bullet removed right away because he did not have the money to pay for the procedure.

On Oct. 29, 2006, Bush was in prison on unrelated charges and transferred to Christus St. Elizabeth Hospital in Beaumont, where Dr. Parkus operated on him. During the procedure, Dr. Parkus found that the bone of the sinus plate had started to grow around the bullet and he was not equipped in the emergency department with the tools to remove the object. Otherwise, there were no reported complications. Dr. Parkus indicated the follow-up procedure would be no more invasive than the first, but the hospital did not have a surgery room available at the time.

Police secured a second search warrant in December 2006 authorizing UTMB otolaryngologist Susan D. McCammon, MD, to go after the bullet. But Dr. McCammon and UTMB refused to go forward with the procedure due to Bush's objections.

Police have since dropped their hunt for the bullet, according to lawyers involved. A jury in August cleared Bush of aggravated assault, but other charges remain pending. No hearings have been scheduled in the medical battery case.

Drs. Parkus and McCammon, as well as both hospitals, declined to comment because of the ongoing litigation.

A medical and legal quandary

Experts say there is little, if any, clear-cut precedent on such a legal quandary.

The U.S. Supreme Court has touched upon the issue of just how far into the human body the government can go to get potential evidence in a criminal case. Blood and DNA tests may be the most common examples of medical evidence sought, whether through a search warrant or court order, typically without question.

However, the high court drew the line in the 1985 case Winston v. Lee when it rejected Virginia state officials' request to order an invasive surgery into an alleged criminal's chest to retrieve a bullet supposedly tying the individual to an armed robbery. While justices found the procedure an unreasonable search under the Fourth Amendment, they enunciated that courts must evaluate such surgical intrusions on a case-by-case basis, and balance private and public interests using factors such as medical risks and the availability of other potential evidence.

When law enforcement comes knocking, where does that leave doctors who find themselves stuck between their duty to serve a patient and their responsibility to the justice system? Even under the auspices of a search warrant or court order, informed consent cannot be overlooked, legal experts say.

Most states have laws recognizing exceptions to consent requirements in emergencies, when it may be impossible or impractical to obtain it from the patient or a surrogate. But Bush's condition appeared to be one that did not require emergency treatment, and all parties seemed to agree the surgery to remove the bullet was not likely to be life-threatening.

In such a case, a determination of liability may hinge on whether public policy concerns end up outweighing patient privacy interests, said Jeffrey J. Kroll, a Chicago-based personal injury lawyer.

"If the criminal justice system wins out, the doctor may have had a right to do what he did. If not, it may be a clear medical battery case because [Bush] is an individual of sound mind with a right to determine what to do with his body," Kroll said.

But the consent issue gets murkier because Bush's case does not involve a typical doctor-patient relationship. Normal rules, such as patient privacy, may not apply, said Jesse A. Goldner, a professor of law and bioethics at St. Louis University School of Law in Missouri.

"Informed consent requires a doctor-patient relationship, which [Bush] seems to say didn't exist," given the filing of a medical battery claim, rather than a medical liability claim, said Goldner, also a professor of law in psychiatry at the university's medical school.

To further confound scenarios in which physicians treat patients tied to alleged crimes, doctors also must consider any statutory obligations to report what they see to law enforcement. Even then doctors should inform their patients about the reporting requirements, Goldner said.

Experts say it's uncommon for a judge to penalize a doctor with fines or jail time for refusing to follow a search warrant or a rare court order authorizing a surgical procedure when the patient objects. UTMB has not been sanctioned for declining to treat Bush.

If prosecutors push the issue, doctors can challenge a search warrant or court order.

The situation may be different, however, if doctors work for a state or county hospital because they could share the same immunities as other government employees. Such laws differ from state to state.

Still, legal experts generally agree the best course of action to avoid liability is to negotiate some type of immunity with a criminal judge and the parties involved, ideally with support from a hospital risk manager. And when first approached by law enforcement, whether for psychiatric records, child abuse issues or a bullet in a man's skull, access to legal counsel is key.

Ethical considerations

From an ethical standpoint, the answer also may not be clear-cut. Nor is it evident what Drs. Parkus and McCammon's differing motivations were for going ahead with or refusing surgery.

According to American Medical Association policy, physicians should honor informed consent policy, both in ethics and law, "unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent."

AMA policy also states that physicians can ethically participate in court-initiated medical treatments in criminal cases, as long as the procedure mandated is therapeutically efficacious and is not being used as a form of punishment.

"The doctor who will perform the procedure must be able to conclude in good conscience and to the best of his or her professional judgment that the informed consent was given voluntarily," AMA policy states.

Danny R. Scott Jr., Bush's lawyer, said a doctor's first and only obligation is to his patient, not government interests.

"It's a dilemma, but a doctor is not an agent of the state. As far as a professional obligation, his duty to his patient overrides any other obligation he thinks he may have," Scott said.

While doctors likely agree, they may find themselves just as stuck as that 9 mm bullet.

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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