I Need Your Surgical Help Like I Need A Hole In The Head

MayorBob.

Posted to Legal on Fri Sep 05, 2008 at 01:36:00 PM EST (promoted by port1080). RSS.

The police ought to have the right to search for evidence as long as they have a properly executed search warrant. All of which is fine when the evidence is all around you. But, what about if the evidence they're looking for is inside of you? Does the state have a right to have surgery performed on you to get at the evidence they say they need -- even if the surgery doesn't present a threat to your life? A case in Texas presents the opportunity to discuss.

The events which result in the story occurred back in July of 2006. That's when a gang tried to hold up a used car lot in Port Arthur, Texas. The unsuccessful robbery did involve the exchange of gunfire with one of the gang members shot. A couple of days later, Joshua Bush was admitted to an ER in Galveston complaining of an accidental gunshot wound to the head. Bush was examined and it was determined that a slug had lodged in the soft, fatty tissue of his forehead. He left without having the slug removed because he couldn't afford to pay for the procedure. Later, police detained Bush and questioned him about the robbery. He said he had been involved but knew nothing about any shooting. Oh, that lump on his forehead - he got elbowed playing hoops.

At the end of October, Bush was in custody on some other charges when he was transferred to a hospital. This time Dr. David Parkus did attempt to remove the slug. Dr. Parkus was operating on the basis of a search warrant issued by a Jefferson County judge. After Parkus cut into Bush's forehead he determined that bone had begun growing around the slug. The hospital wasn't equipped properly to continue the surgery so Bush was sewn back up and returned to jail. Another search warrant was issued in December to have the surgery performed at a hospital with the proper equipment. But, because Bush refused to give his permission for "invasive surgery", the surgeon refused to operate. The prosecutor said, okay, we think we have enough evidence to convict him. Leap forward to this past week and Bush was acquitted of aggravated assault in the holdup. The jury foreman said the main reason they couldn't convict him was the state didn't present any evidence Bush was involved in a shootout.

Bush, who remains in jail facing other charges stemming from the hold up, filed a lawsuit (pdf doc) in civil court seeking damages against Dr. Parkus and the hospital. Bush contends he never gave Parkus permission to perform the limited cutting on him which occurred in October. The complaint states "specifically, Defendant Parkus cut into defendant's forehead with a scalpel in an attempt to remove a bullet" and that, according to Bush's attorney, Danny Scott, constitutes medical battery. The law is not absolutely clear in this case, however. Blood and DNA samples can be taken from criminal suspects by warrant. However, a 1985 US Supreme Court decision did outline some limits regarding how invasive a search can be made of a suspect's body. The legal question here becomes is surgery to remove a slug lodged in the skull of a suspect as invasive as the case in Winston v. Lee (which involved extracting a slug from the chest of a suspect)?

There is also a gray area surrounding the doctrine of "informed consent" in a normal doctor-patient relationship. Normally the wishes of the patient would outweigh the doctor's right to perform surgery on him. But Dr. Parkus was acting as the result of a court order and he could have faced punishment had he refused to operate. Plus, Bush was not his patient in the normal meaning of that term. Finally, Parkus performed the court-ordered surgical procedure but did not proceed once he determined he couldn't safely do so. The American Medical Association says physicians can ethically participate in court-ordered medical procedures on criminal suspects as long as they have been mandated, are "therapeutically efficacious" and aren't being used to punish the patient. To which Danny Scott would respond, "immaterial." From Scott's perspective, what counts is that:

"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."