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Supreme Court Finds Prenatal Drug Screen Policy Unconstitutional.

CAN A STATE HOSPITAL OPERATE A PRENATAL DRUG SCREENING PROGRAM IN PARTNERSHIP WITH LAW ENFORCEMENT AUTHORITIES? What if the program is geared to refer patients testing positive to rehabilitation? What if the program involves strict cooperation with law enforcement authorities with the focus on prosecuting those who test positive? What if the policy contains a provision that "voluntary" participation in a drug treatment or rehabilitation program will result in the avoidance of criminal prosecution? These were just some of the issues with which the Federal Courts and ultimately the United States Supreme Court were confronted in this extraordinary South Carolina case.

STAFF MEMBERS AT THE CHARLESTON PUBLIC HOSPITAL OPERATED BY THE MEDICAL UNIVERSITY OF SOUTH CAROLINA (MUSC) BECAME CONCERNED ABOUT AN INCREASE IN THE USE OF COCAINE BY PATIENTS RECEIVING PRENATAL CARE. When the incidence of cocaine use among maternity patients remained unchanged despite referrals for counseling and treatment of patients who tested positive for the drug, MUSC staff offered to cooperate with the City of Charleston in prosecuting mothers whose babies tested positive for drugs at birth. A task force made up of MUSC representatives, police, and local officials developed a policy which set forth procedures for identifying and testing pregnant patients suspected of drug use; required that a chain of custody be followed when obtaining and testing patients' urine samples; provided for education and treatment referral for patients testing positive; contained police procedures and criteria for arresting patients who tested positive; and prescribed prosecutions for drug offenses and/or child neglect, depending on the stage of the expectant mother's pregnancy. Ten MUSC obstetrical patients who had been arrested after testing positive for cocaine, brought suit against the City of Charleston in the United States District Court for the District of South Carolina. The District Court instructed the jury to find for the patients unless they had consented to such searches. However, the jury found for the defendants. The plaintiffs appealed. The Untied States Court of Appeals, Fourth Circuit affirmed the judgment of the U.S. District Court. The plaintiffs petitioned for certiorari.

THE UNITED STATES SUPREME COURT REVERSED THE JUDGMENT OF THE LOWER COURT. The Court held, inter alia, that because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. Moreover, the urine tests conducted by those staff members were found to be indisputably "searches" within the meaning of the Fourth Amendment. Neither the District Court nor the Court of Appeals concluded that any of the criteria used to identify the women to be searched provided either probable cause to believe that they were using cocaine, or even the basis for a reasonable suspicion for such use. The District Court and the Court Appeals viewed the case as one involving MUSC's right to conduct searches without warrants or probable cause. In prior cases, the court implied a balancing test that weighed the intrusion on the individual's interest in privacy against the "special needs" that supported the program. The policy in question plainly revealed that the purpose actually served by the hospital searches was "ultimately indistinguishable from the general interest in crime control."

THE FACT THAT POSITIVE TEST RESULTS WERE TURNED OVER TO POLICE PROVIDED AN AFFIRMATIVE REASON FOR ENFORCING THE STRICTURES OF THE FOURTH AMENDMENT. While state hospital employees may have a duty to provide the police with evidence of criminal conduct that they have "inadvertently" acquired in the course of routine treatment, when the same employees undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, the employees have a special obligation to make certain that the patients are fully informed of their constitutional rights, as standards of "knowing wavier" require. The court concluded that despite the fact that the hospital's motives were benign rather than punitive, its motives cannot justify the departure from the protection of the strictures of the Fourth Amendment. The court found a provocative involvement of hospital officials and personnel. The unique fact that characterized this case is that the policy was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police for use in criminal prosecutions. Ferguson v. City of Charleston, 2001 WL 273220 S.E.2d -SC

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Article Details
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Title Annotation:privacy rights of patients upheld
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Apr 1, 2001
Previous Article:Accused in Drunk Driving Death Gets Blood Test at Hospital.
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