Special Feature
Injured Intoxicated Drivers, Law Enforcement, and the Emergency Physician
By Jeffrey W. Runge, MD, FACEP
Motor vehicle crash is the leading cause of death in people 15-35 years of age. In 1997, nearly 42,000 people in the United States were killed in motor vehicle crashes, and 3.4 million people were injured. Alcohol was involved in 38.5% of all fatal crashes, and in 7% of all crashes. About three of 10 Americans will be involved in an alcohol-related crash at some point in their lives.1 Alcohol-impaired driving is a public health problem of mammoth proportion that requires a coordinated effort from all parties involved in the communities of health care, law enforcement, and public policy. Emergency physicians routinely encounter both the perpetrators and the victims of drunk driving crashes as part of every day practice. Not to respond violates the sensibilities and principles of physicians who are mindful of the need to safeguard the public’s health, as well as the individual patient.
Emergency physicians frequently find themselves caught between their roles as the advocate for the individual patient and the guardian of the public health, not to mention the necessity of navigating the same roads as the drunk driver. Emergency physicians are ever mindful that every healthy person in their community may become a patient when the public health or public safety systems fail. What should one do when confronted with a patient injured in a motor vehicle crash while driving intoxicated by alcohol?
In the United States today, it is very likely that such a patient will not be charged with any offense by the police, and that this will escape detection. The failure of the police to charge injured intoxicated drivers has been well documented. In the emergency department specifically, only 28% of injured intoxicated drivers are charged with DWI, and 17% are convicted.2 Moreover, for every 1000 drunk driving episodes, only 3-5 drunk driving arrests are made. Thus, the conscientious emergency physician understands that these patients are at extremely high risk for repeat injury or the injury of others. The future health and well being of such a patient depends on effective intervention with the disease of alcohol abuse or alcohol dependency. Outside of the emergency department environment, the impaired driver has a much higher chance of receiving intervention via legal sanctions and interface with law enforcement officers. What is the duty of the emergency physician in dealing with these patients’ risk of future injury?
There are various approaches taken by several states to address this problem. Most states, however, have not dealt with the issue, and, thus, default to patient confidentiality laws. It can be grounds for a tort action in most states if a physician discloses information about alcohol impairment to a police officer without the patient’s consent. Such laws have the effect of impeding the police investigation of a potential alcohol related crash, even if it is a felony.
Several states have dealt with the issue by passing legislation that gives physicians the opportunity to ensure that legal intervention occurs for injured drunk drivers. The various approaches include mandatory reporting, elective reporting, referral to medical review for drivers licensing, and other statutes that make it permissible to disclose information to an investigating officer. Physicians should become knowledgeable about their specific state laws about what is prohibited and allowed or mandated with respect to dealing with injured intoxicated drivers. State laws have been changing in many places in recent years, and are subject to further change, as the topic is very popular among state legislatures at this time.
Mandatory Reporting
The state of Hawaii recently passed legislation that requires health care providers to report injured intoxicated drivers to police; it is the only state in the country to have such a requirement. The mandate refers to "health care providers," which is not limited to physicians. Specifically, the statute states that if a health care provider "becomes aware as a result of any blood tests performed in the course of medical treatment [that the patient is intoxicated] . . . the health care provider shall notify" the officer present or any officer in the county of occurrence of the crash. Furthermore, when the health care provider is aware of any blood tests over the legal limit among drivers or passengers in the vehicle, the health care provider must report all occupants of the vehicle. The effect of this law will not be known for some time, but the short-term advantages include the obvious increase in detection of impaired drivers. The disadvantages of this law include potential erosion of the doctor-patient relationship and of the physician’s role as patient advocate. Opponents of the law argue that such laws discourage needed treatment after a motor vehicle crash, providing a disincentive to be examined if one has consumed any alcohol at all, irrespective of impairment. It may preclude the provision of other needed interventions for these patients, such as referral for substance abuse treatment. There may also be legal risk for the physician, in that there is no protection for a physician for not being "aware," of intoxication, regardless of whether a blood alcohol level was drawn. Even so, there is likely to be a decrease in the number of serum alcohol levels performed because the test may create the need to report a patient who shows no clinical signs of impairment.
Elective Reporting
Many of the advantages of mandatory reporting laws are also present with elective reporting laws, such as exists in Illinois. Such laws permit physicians or other health care providers to report intoxicated drivers to law enforcement officers, while providing protection from civil liability for reporting in good faith. The major disadvantage of elective reporting is the opportunity for bias in reporting based on gender, racial, or other social biases. Without strict protocols, reporting is likely to occur only if it is convenient for the health care provider, or perhaps for only those cases that arouse anger or ill feeling among the emergency department staff. Opponents of these laws point out that there may be added legal liability for physicians who treat injured, impaired drivers, and do not report them all. It can be argued that it is a physician’s duty to detect drunk drivers in order to protect the population from subsequent alcohol-related crashes. Failure to report a driver who causes injury to innocent parties at a later time may imply causation and legal liability.
Elective Referral for Medical Review
Two states, Connecticut and North Carolina, have state laws that allow elective reporting of patients who, by virtue of a medical condition, cannot operate a motor vehicle safely. The "referral" is made to the state department of motor vehicles medical review panel, which consists of physicians who review the medical record and determine fitness for drivers’ licensure. Such medical conditions include chronic substance abuse, as well as unstable diabetes, seizure disorders, poor visual acuity, and others. While not a legal sanction, the medical review panel has the authority to recommend revocation of a driver’s license until the medical condition is treated successfully. This law was recently passed in both states, and the effects are not yet known.
Other Cooperative Efforts
Some states permit health care providers to disclose to an investigating officer whether a patient appears to be chemically impaired. This judgment may or may not be independent of the blood alcohol level. This type of permission does not make the physician into a "whistle blower," but rather permits the physician to cooperate with a police officer’s investigation already underway. These laws recognize the similarity between the injured, impaired driver and the patient with a gunshot or stab wound as evidence that a crime was committed. There are already reporting laws for gunshot and stab wounds and other intentional injuries on the books in most states.
The American College of Emergency Physicians (ACEP) developed a policy on this issue, and adopted it as College policy in January 1998. ACEP advocates alcohol testing of drivers by law enforcement officials in all crashes involving fatality or serious injury, but not reporting by emergency physicians. ACEP supports emergency physicians identifying and arranging treatment for individuals suffering from alcohol abuse or alcohol dependency. Furthermore, ACEP opposes legislation providing permissive or mandatory reporting of patient alcohol concentration levels by physicians because "such reporting fundamentally conflicts with the appropriate role of physicians in the physician-patient relationship."3 This issue represents an opportunity for emergency physicians to become active in their state medical societies and state ACEP chapters to develop and lobby for sound policy on this issue. Only through sound public policy can the need of society to protect itself against the ravages of drunk driving be made consistent with the physician’s need to be the patient’s advocate in every possible way. Such advocacy should recognize the need for intervention in the way most appropriate for that patient, while doing one’s best to ensure that it will be safe to drive home from the shift.
References
1. Traffic Safety Facts, 1997. National Highway Traffic Safety Administration, U.S. Department of Transportation. (www.nhtsa.dot.gov/people/ncsa/)
2. Runge J, et al. Ann Emerg Med 1996;27:66-72.
3. ACEP. Ann Emerg Med 1998;32:126.
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