Torts. Hospital had no duty to prevent assault on patient by police; but nurse committed battery if nurse drew blood at police request without patient consent.

O'Brien v. Synnott, 2013 VT 33 (17-May-2013)(Robinson, J.)  


Plaintiff Kelley S. O’Brien sued defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for injuries he suffered when allegedly assaulted by police officers after defendants negligently allowed those officers unrestricted access to him in the hospital while he was recovering from surgery, and for drawing his blood at the request of law enforcement officers and without his consent. The trial court granted defendants summary judgment, concluding that it was not reasonably foreseeable that the police officers would harm plaintiff if allowed unsupervised access, and that nurse had plaintiff’s apparent consent to draw the blood. We affirm in part and reverse in part.

Defendants’ duty to protect plaintiff does not extend to protecting him from attacks by third parties that are not reasonably foreseeable. See also Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take precautions against a sudden attack from a third person which [the defendant] has no reason to anticipate”); id. § 320 (explaining that actor has duty to control conduct of third persons only when actor “knows or should know of the necessity and opportunity for exercising such control”). Considering the facts in the light most favorable to plaintiff, a law enforcement officer requested an evidentiary sample of his blood in the emergency room, and plaintiff refused. The officer said he would get a warrant. Plaintiff was taken from the emergency room for emergency surgery. While he was in the post-anesthesia care unit (PACU) recovering from the surgery, his nurse left the area, allowing a group of police officers the opportunity to access plaintiff’s room. The officers asked plaintiff for a blood sample. When plaintiff refused, they held him down, covered his mouth, and tried, unsuccessfully, to take his blood by force. We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack plaintiff if left unsupervised.

A provider commits battery if the provider performs a procedure without the patient’s consent. Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. Later, nurse returned and drew plaintiff’s blood. Nurse did not disclose to plaintiff her purpose for drawing blood, or that the blood draw was not in connection with medical treatment for plaintiff’s benefit. Nurse drew the blood for the purpose of providing a sample of plaintiff’s blood to the police. Plaintiff did not object to her drawing the blood, but also did not consent to her drawing his blood for a nonmedical purpose. In the absence of undisputed evidence that plaintiff knew or should have understood the nonmedical purpose of the blood draw, the fact that he did not object does not support the conclusion that his conduct amounted to apparent consent. Defendants argument relies on inferences in defendants’ favor that we cannot draw at the summary judgment stage.

We reject Defendant’s policy argument that medical providers should be immune from civil liability for battery when they draw a blood sample from an individual suspected of driving under the influence at the request of law enforcement officers without regard to whether the individual consents to the blood draw. The Legislature has expressly limited the liability of medical providers in certain circumstances related to blood draws and individuals suspected of driving under the influence, inapplicable here, but has not expressly required medical personnel to comply with law enforcement requests to draw blood, and has not immunized those providers from liability for complying. Without legislative action we conclude that when a patient is conscious and the authority to draw blood depends upon actual consent, the police officers’ request does not protect defendants from liability for drawing the blood without plaintiff’s consent.