In 2012 Senate Bill 2787, Senator Brian Kelsey, a Republican from Germantown (part of Shelby County), has sponsored a bill allowing a person who is “properly trained,” but not necessarily certified to draw the blood of a person suspected of DUI to determine alcohol and/or drug content. What should concern Tennessee citizens is that this bill removes the requirement found in current law (T.C.A. Section 55-10-410 which deals with drawing blood in driving under the influence/implied consent violation situations) that the person drawing the blood shall be:
A registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed emergency medical technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified and/or nationally registered phlebotomist or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.
Remarkably, there are no provisions in this bill detailing the amount of training or even requiring that the person drawing the blood pass a proficiency test. Nor are there provisions requiring a judge to determine that probable cause (the legal grounds required for arrest) exists before the blood is taken from the body.
While I am certainly far from a health care professional, I have had substantial experience as a non-certified phlebotomist when I worked in a hospital blood laboratory, albeit about 35 years ago. I am aware of some of the potential complications from an improper blood draw such as thrombophlebitis, infection, damage to blood vessels, hematoma/bruising, and damage to the nerves near the venipuncture site.
Moreover, the proposed law gives no consideration to the fact that the officer may suffer from a contagious disease, is working in poor lighting conditions, or may be distracted by law enforcement duties during the blood draw. If a medical condition occurs during a blood draw—the criminally accused would have no immediate access to a healthcare provider for treatment. In some situations, such as infection, the symptoms, etc. may manifest long after the actual blood draw.
Not surprisingly, the proposed law provides that the person drawing blood shall not incur any civil or criminal liability as a result of drawing the blood, except for damages that may result from negligence. This means that a law enforcement officer with minimal training would be allowed to draw blood from a suspect with their arm on the hood of the police vehicle or similar unsterile environment. This could be done without supervision from any other person, opening the door to abuse and negligence that would be difficult to prove except in a rare circumstance where the invasion of one’s body would be documented by video.
In 2006, Ann Japenga, a reporter for the New York Times, wrote about her debilitating injury that, after much suffering, was determined to have been caused by the needle going through her vein and causing dangerous but invisible bleeding into her arm. The injury, caused by a phlebotomist in her doctor’s office, required surgery “to prevent permanent loss of the use of [her] arm, as well as a condition called “claw hand” that causes your digits to curl up like a sea anemone.” The full article can be accessed here: http://www.nytimes.com/2006/05/30/health/30case.html.
Simply allowing the injured party to sue for negligence, as Senator Kelsey proposes, is not an appropriate remedy. This type of case would have limited allowances for recovery. With few exceptions, Tennessee law limits recovery against governmental entities to the amount of $300,000.00 pursuant to The Governmental Tort Liability Act. Furthermore, this type of recovery would likely require the services of a civil lawyer who would (and should) charge a fee for his or her services. Accordingly, the injured party would likely receive less than two-thirds of a recovery after attorney fees. Moreover, expert fees, deposition costs and other trial expenses would have to be borne by the injured party.
If you have ever had a medical professional who is certified to draw your blood need to “stick” you on several occasions to obtain a sufficient sample, you can only imagine the type of abuse a suspect would receive from an uncertified law enforcement official. I urge you to contact your Legislator to vote against this bill.
It is also most interesting that Senator Kelsey is sponsoring another bill making it a crime that carries a penalty of up to 30 days in jail for a law enforcement officer to unlawfully install a tracking device on a person or object (2012 Senate Bill 3046). If he doesn’t trust a police officer to comply with a citizen’s right to privacy, how in the world would he expect an officer not to abuse a suspect when they stick a sharp object into their arm or other part of their body?
The lawyers at Oberman & Rice frequently monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases. Should you have any questions about a Tennessee DUI issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200. You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.
