We’ll be back with more comic book-inspired posts next week, but we’ve been clearing out the mailbag lately and we’ve had quite a few questions about television shows. Today’s question comes from Brian, who asks about an episode of Person of Interest. Minor spoilers ahead.
In the episode, protagonist John Reese is trying to protect a witness to a mob killing. Unfortunately, the witness is shot in the shoulder. With the mob still on their trail, Reese makes an attempt at first aid using topically applied cocaine and glue, without the witness’s prior consent. Brian asks:
If/when the victim presents himself at the hospital and informs doctors of how it was treated, would the victim be in violation of any laws due to the presence of cocaine in his bloodstream and/or how would he be (legally) expected to handle the consequences of being given a highly addictive and illegal street drug as an analgesic?
There are several aspects to this question. First, did Reese violate any laws? Second, did the witness? And third, how does the physician/patient privilege come into play?
First, a brief factual background: cocaine has legitimate medical uses, including as a vasoconstrictor to control bleeding (that’s why it’s a Schedule II drug instead of Schedule I in the US). Its use in that role is mostly limited to areas like the nose rather than large-scale trauma like a gunshot, but there’s at least some theoretical efficacy there. Similarly, certain cyanoacrylate glues (e.g. Dermabond) are FDA approved for use in closing wounds. The medically approved kind are not all that different from over-the-counter cyanoacrylate glues, so again there’s some vaguely reasonable basis for the treatment.
I. Reese’s Liability
The most obvious problem is that Reese purchased and possessed an illegal drug. It’s hard to tell exactly how much he bought, but it was probably about a gram, which would make it fourth degree criminal possession of a controlled substance under N.Y. Penal Law § 220.09, a Class C felony, plus liability as a buyer. Could this be excused under a necessity theory? And even if that could be excused, what is his potential liability if his first aid actually made things worse?
In New York, the defense of necessity is called “justification,” and is described by N.Y. Penal Law § 35.05:
… conduct which would otherwise constitute an offense is justifiable and not criminal when:
Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
Basically New York follows a “choice of evils” theory: “the desirability and urgency of avoiding such injury [must] clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.” Importantly, the choice is judged by an objective standard: the question is whether a reasonable person would agree that Reese’s conduct was necessary under the circumstances? See People v. Craig, 78 N.Y.2d 616 (1991).
The word “necessary” must also be emphasized. The statute “rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action.” Craig, 78 N.Y.2d at 623.
So, was there an imminent private injury? Yes, the witness had been shot, was severely wounded, and there was no help on the way. Was it Reese’s fault? No, he was trying to protect the witness, who was shot by the mob. Was Reese’s action necessary under the circumstances? Quite possibly, but that issue would probably ultimately come down to expert testimony. If a reasonable person would have thought that the witness was likely to die without the ad hoc medical treatment (and ordinary first aid would have been insufficient), then it was probably justified.
B. Good Samaritan Laws
So far, so good. Reese may be off the hook for buying the cocaine. But what if his unusual first aid actually made things worse? Could the witness sue?
New York, like just about every state, has a “Good Samaritan law” that limits liability for people who render aid to others. New York’s law is particularly strong, since it gives complete immunity to qualifying people who give aid:
… any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.
N.Y. Public Health Law § 3000-a. So as long as Reese’s cocaine & Superglue first aid didn’t amount to gross negligence, he’s in the clear. Of course, it’s easy to argue that cocaine is so often adulterated with toxic substances that it would be gross negligence to even try to use it in that situation. It would all come back to what a reasonable person would think and whether Reese, knowing of an unreasonable risk, took it anyway.
So that’s Reese’s liability. Now let’s turn to the witness.
If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified, but if Reese’s use wasn’t justified, then could the witness be in trouble?
In New York (as in most jurisdictions), possession requires knowledge of the possession of the controlled substance. In this case, the witness was conscious as the cocaine was administered, so he certainly had knowledge. And while he wasn’t asked for permission in advance, he seemed to consent during the procedure (“there’s a first time for everything”), so he can’t claim that he tried to divest himself of the drugs.
On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol). I could not find a case specifically rejecting this theory, but the NIH agrees with this assessment.
So merely having cocaine in his bloodstream may not be enough to prove that the witness possessed cocaine. Of course, the prosecution could impose immunity on Reese and compel him to testify, but that seems unlikely.
III. The Physician/Patient Privilege
New York, like many jurisdictions, privileges certain communication between a physician and a patient from disclosure. N.Y. CPLR § 4504:
Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.
Knowing that the witness had potentially adulterated cocaine in his system would probably be necessary to enable a physician to attend to the witness in a professional capacity. So given that, it’s difficult to see how the police would ever learn about what happened, assuming neither Reese nor the witness talked.
We don’t typically follow Person of Interest, but this episode had a lot of interesting legal issues, even if some of them turned out to be moot points (if you’ve seen the episode or read the plot synopsis you’ll know what I mean).