Hospital Policy Questioned

By T.J. Wilham
Copyright © 2007 Albuquerque Journal; Journal Staff Writer

After he died Nov. 12, Dana Papst's autopsy revealed his blood alcohol content was more than three times the presumed level of intoxication.
But if he had lived, it might have been impossible to prosecute because the hospital initially refused to take a blood sample, a district attorney says.
Hours before his death, Papst had driven the wrong way on Interstate 25 near Santa Fe and killed five members of a Las Vegas, N.M., family.
District Attorney Henry Valdez of Santa Fe said trouble getting a blood sample could have posed serious problems.
"This could have been fatal to our case," Valdez said. "It is all speculation because he is dead, but there is a distinct possibility that no charges could have been filed."
Unlike other hospitals across the region, the University of New Mexico, Presbyterian and Lovelace hospitals do not take blood samples for police to use in criminal cases.
And that can jeopardize cases, particularly those involving alcohol, say prosecutors and law enforcement officials.
The concern arose after UNM Hospital staff initially refused to take a blood sample from Papst before he died.
Albuquerque's hospitals require law enforcement to hire a separate company to take blood from people suspected of a crime. While Albuquerque police and the Bernalillo County Sheriff's Department have a contract with a local company to do that, the Santa Fe County Sheriff's Department does not.
Someone finally arrived to draw Papst's blood— but not until about three hours after the crash.
New Mexico case law considers a reasonable amount of time to get a blood or breath sample from a suspect to be two hours.
Hospitals in El Paso, Las Cruces and Santa Fe provide the service to police free of charge, law enforcement agencies there said.
Under Arizona law, if blood is being taken by the hospital for medical reasons, the staff must provide a sample to police if a crime is suspected and they have probable cause or a court order. That is not the case in New Mexico.
TriCore Reference Laboratories, the nonprofit company that contracts with APD and BCSO, was founded by UNMH and Presbyterian in 1998 and takes in about $170,000 a year from the two police agencies combined. The company supplies full medical blood collection and testing for both hospitals.
Contacted Wednesday, representatives from UNMH, which handles most trauma patients in the city, told the Journal they would re-examine their policy in light of the Papst incident.
"It's a major problem, not being able to get a hospital to do this," said Santa Fe County Sheriff Greg Solano. "It would have been harder to prosecute Dana without a blood test."

The fatal crash

On Nov. 11, US Airways served Papst two drinks on a flight from Phoenix, although, according to other passengers, he appeared to be inebriated. A little while later, he drove to Bernalillo and purchased a six-pack of beer from a convenience store.
Soon after, about 8 p.m., he drove his pickup the wrong way on Interstate 25 in Santa Fe County and plowed into a minivan, killing five members of a Las Vegas, N.M., family.
A medical helicopter flew Papst to UNMH, which has the only level one emergency trauma center in the state.
Shortly after he arrived, a Santa Fe County sheriff's deputy showed up at the hospital and requested a blood sample.
Hospital staff told the deputy they do not take blood for law enforcement, Solano said. Deputies frantically called law enforcement in Albuquerque.
An APD representative referred the deputies to TriCore. But Solano said when the deputies called TriCore, they were told the lab wouldn't do the test because the sheriff's office didn't have an account.
Deputies argued with the company, and eventually TriCore agreed to send a technician, Solano said. A technician arrived at the hospital at 10:45 p.m., nearly three hours after the crash, he said.
At that point, it was determined that Papst was not going to survive.
Tests conducted after Papst's autopsy revealed his blood alcohol content was 0.27 percent, more than three times the presumed level of intoxication.
TriCore CEO Russell W. Duke disagreed with some of Solano's version of the story.
He told the Journal on Wednesday that the company didn't receive a call from the Santa Fe sheriff's office until 10 p.m. and that it had a phlebotomist at the hospital by 11:15 p.m. He disputed Solano's contention that TriCore at first refused to draw the blood because Santa Fe does not have a contract.
"We hit our target time (of responding to law enforcement's request) quite well," Duke said. "This incident bothers me because we did dispatch a person based on the request of law enforcement."
In response to Solano's concerns, UNMH spokesman Sam Giammo said the hospital would examine its policy.
"This seems like this is a rare instance," Giammo said. "The policy works routinely with the local law enforcement agencies. We will take a look at the policy and consider the comments given by the other police agencies.
"We can't draw any conclusions right now, but it's something we will take a look at."
Contacted Wednesday, officials at Presbyterian Hospital said if a similar scenario happened at their facility, they would have ordered the TriCore phlebotomist to take the test for the sheriff's office.
"At that point there is no monetary consideration," said spokesman Todd Sandman.

More accurate

In most DWI cases, police use a breath test to seek a conviction.
But in cases in which a suspect is injured in an accident or a court-approved breath machine is not available, the police have a blood sample taken and sent to a lab to be analyzed.
The method is considered more accurate than breath testing.
In Santa Fe County, St. Vincent Regional Medical Center draws blood and turns it over to police free of charge.
In December, Albuquerque Aviation Police, which patrols the Albuquerque International Sunport, experienced a similar problem.
According to records obtained by the Journal, an Aviation Police officer needed a blood sample from a suspect because a breath machine was not available.
The officer called Albuquerque police and requested a blood technician be sent to his station. Representatives from TriCore, which also takes blood outside of the hospital, told APD that they wouldn't send a blood technician because Aviation Police wasn't a TriCore customer, according to police records.
Like APD, Aviation Police is a city-run agency.
Eventually, the aviation officer was able to find an APD officer who had access to a breath machine.
A sample was taken, but it was nearly two hours after the officer spotted the suspect. The delay "could call into question the legal validity of the test results," officer Todd Wooldridge wrote in a memo to his superiors.
The suspect's blood alcohol content was 0.19 percent, more than twice the presumed level of intoxication in New Mexico.
The case is scheduled to go to trial in Metropolitan Court in April.
Had the officers not eventually found a breath machine, "this individual would have skated," said Aviation Police Chief Marshall Katz.
"We are in the business of saving lives, and to do that one of our functions is to take intoxicated drivers off the street," Katz said. "We need tools to do that effectively, and a blood tech is a very important tool. For me, the issue is not monetary, and it shouldn't be for them, either."
Duke said there was some confusion that night, and initially TriCore representatives were not aware the Aviation Police Department was a city agency. He contended that once APD contacted TriCore for the test, a phlebotomist was dispatched, only to be told the services were not needed.

Promptness necessary

Police rely heavily on getting blood or breath samples in a timely fashion, particularly since the state Court of Appeals handed down a controversial ruling last year.
The court in New Mexico vs. John Day III has paved the way for defense attorneys to bring expert witnesses in DWI cases to dispute the validity of a blood or breath test based on when the sample was taken or other factors.
Prosecutors have said getting blood- and breath-alcohol tests admitted as evidence has become more difficult.
In most DWI cases involving death or injury, prosecutors seek a charge of homicide by vehicle, which is a third-degree felony punishable by a sentence of up to six years in prison.
To seek a homicide by vehicle charge, prosecutors must prove that the driver was under the influence of drugs or alcohol or driving recklessly.
To prove the latter is sometimes difficult, Valdez said, and requires many witnesses.
In the Papst case, Valdez said, if they couldn't prove that Papst was under the influence of alcohol, they would have to prove he was driving recklessly— which would be more difficult.
Bernalillo County Sheriff Darren White said there is always a time delay in drawing blood because his agency has to wait for TriCore. But he said TriCore always responds within an hour of a call.
Although TriCore has employees at the hospitals, it sends a specialist to draw blood for criminal cases.
"The system we have now takes crucial minutes away from an investigation, and it costs taxpayers lots of money," White said. "I have always felt that the hospitals should just draw the blood.
"When we have shooting victims, they take the bullet out of a victim and give it to us. Why can't they give us their blood?"
Since learning of the incident with Santa Fe, White said he is going to let other New Mexico sheriffs know that they can call his office if they run into a problem with UNMH.
He said he will dispatch a deputy to the hospital, who would authorize TriCore to draw the blood and pay TriCore's fees.
"We don't want to lose a DWI case because the hospital wouldn't draw blood," he said.