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Vermont court says man can sue hospital for blood draw

MONTPELIER — The Vermont Supreme Court ruled Friday that a man with multiple drunken driving convictions can sue the state’s largest hospital for drawing his blood at the request of police.

But the court said it is up to the Legislature to consider whether state law governing when drunken driving evidence can be taken at a hospital needs to be changed to broaden the ability of medical personnel to help the police. Police need to collect evidence, and hospital patients have a right in most cases to give consent before a medical procedure is performed.

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‘‘In the face of these competing policy considerations, we would look to the Legislature to define the contours of any exceptions to the ordinary common law obligations of medical provider to patient,’’ Associate Justice Beth Robinson wrote for the court.

Kelley O’Brien of Burlington, who was then 45, was brought to Burlington’s Fletcher Allen Health Care after a February 2009 incident in Shelburne. Police said at the time that he drove his car at an officer who fired several shots in self-defense, one of which lodged in O’Brien’s back.

At the hospital, O’Brien twice refused police attempts to take a blood sample as evidence he had been driving drunk. After surgery to remove the bullet, a recovery room nurse drew O’Brien’s blood. He consented, thinking it was for medical purposes, but the nurse turned the sample over to police.

O’Brien later sued the hospital and nurse Catherine Synnott for negligence and battery. He said the hospital and nurse were at fault twice: once when the nurse left him alone in his room, allowing police to enter and assault him as part of an unsuccessful effort to get a blood sample; and again when Synnott later took a blood sample without telling him it was for the police.

Judge Geoffrey Crawford of Chittenden Superior Court granted summary judgment to Synnott and the hospital, meaning that as a matter of law, O’Brien did not have good grounds for a lawsuit.

At the hospital, O’Brien twice refused police attempts to take a blood sample as evidence.

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O’Brien, acting as his own lawyer, appealed. In Friday’s entry order, the high court upheld Crawford’s ruling rejecting the negligence claim.

‘‘We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack [O’Brien] if left unsupervised,’’ the court decision said, adding that ‘‘defendants cannot be held liable for negligence on account of nurse’s alleged conduct in leaving plaintiff alone with law enforcement officers, even viewing the evidence most favorably to [O’Brien].’’

But the court reversed and sent back to the lower court for further action on the question of liability for Synnott’s performance of a medical procedure, the blood draw, without the patient’s full, informed consent.

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