Most-Invasive-Procedure-of-the-Month Award

Most-Invasive-Procedure-of-the-Month Award

The polls have closed, and the votes have been tallied.  The Most-Invasive-Procedure-of-the-Month Award for August goes to Dr. Michael LaPaglia, at Methodist Medical Center in Oak Ridge, Tennessee.

Back in 2010 the police asked Dr. LaPaglia to conduct a body cavity search of Felix Booker.  They were looking for illegal drugs.  Dr. LaPaglia said yes and proceeded.  First, he paralyzed Felix with drugs (legal ones).  Then he probed Felix’s . . . well, one of his cavities.  And, no, he didn’t ask for, let alone receive, consent from Felix.

Felix filed a § 1983 suit in federal court for violation of his civil rights.  The court had little doubt that the probe was a violation of Felix’s rights.  So its August 28 decision centered on whether Dr. LaPaglia was entitled to summary judgment and dismissal from the case because either (a) he wasn’t a “state actor” or (b) he was entitled to qualified immunity.

The court found against Dr. LaPaglia on both arguments and denied his summary judgment motion.

The lesson for physicians?  The fact that the police request an action doesn’t necessarily make it legal.  In fact, it may actually increase the risk of liability.  Why?  Because the law sometimes imposes greater restrictions on “state actors” than on private citizens.  And acting on behalf of a government agent—the police in this case—can make a person a “state actor.”

The same lesson applies to hospitals.  In this case, if a nurse or other employee of the hospital had assisted Dr. LaPaglia, the analysis of the hospital’s actions, through the employee, could have been the same as the analysis of Dr. LaPaglia’s actions.

The case is Booker v. LaPaglia, 2014 BL 238444 (E.D.Tenn.).

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