Shot Suspect Alleges Battery in Forced Surgery Case

In a scenario right out of a TV medical drama, a suspect in the attempted shooting of a used car lot owner has sued the surgeon who tried to remove a bullet from his forehead that police were seeking as evidence against him.

Joshua Bush, 19, refused to consent to the surgery at a hospital in Beaumont, Texas, and is now trying to hold Dr. David E. Parkus liable for choosing to assist in a police investigation rather than respect his bodily privacy. Police had a search warrant for the bullet, alleging it came from a gun fired by Allen Olive in a shootout at his used car lot.

“It's a dilemma, but a doctor is not an agent of the state,” Bush attorney Danny R. Scott told American Medical News. “As far as a professional obligation, his duty to his patient overrides any other obligation he thinks he may have.”

Parkus was unable to remove the bullet because bone had begun to grow around it, requiring more extensive surgery than he had planned. In a suit filed in July, Bush alleges the surgeon made an “offensive physical contact” with him that constitutes a medical battery.

“Specifically, Defendant Parkus cut into defendant's forehead with a scalpel in an attempt to remove a bullet,” the petition says.

Police say Bush was among the gang members who broke into Olive's Used Cars in Port Arthur on July 21, 2006 and tried to steal vehicles from the lot. Olive told police that after officers had left the scene following the robbery and he began cleaning up, he fired back at a male who shot at and threatened him from a nearby alley.

A Jefferson County judge issued a search warrant after police discovered that Bush had sought emergency treatment for a gunshot wound. X-rays showed a 9 mm slug -– which allegedly matched Olive's gun -- nestled in the soft, fatty tissue of Bush's forehead two inches above his eyes.

The search warrant required only a showing of probable cause but in determining the reasonableness of a surgical intrusion, courts also consider such things as “the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence.”

The U.S. Supreme Court has said a suspect in an armed robbery could not be compelled to undergo surgery to remove a bullet from his shoulder, finding that the state of Virginia had “failed to demonstrate a compelling need for it.”

“The fact that the Commonwealth has available [additional] substantial evidence of the origin of the bullet restricts the need for the Commonwealth to compel respondent to undergo the contemplated surgery,” the court ruled in Winston v. Lee, 470 U.S. 753 (1985).

Bush may similarly be able to show there was no “compelling need” to recover the bullet from his forehead. For one thing, prosecutors eventually dropped their plans to seek more surgery to remove it, expressing confidence that they could convict Bush without that evidence.

The fact that police had a warrant, moreover, does not mean Parkus could perform the surgery without Bush's consent -– especially as the removal of the bullet was not required by a medical emergency.

But in an ironic twist to this tale, Bush was acquitted last month of aggravated assault with a deadly weapon. Without any physical evidence, the jury foreman said, there was room for doubt about whether it was Bush who shot at Olive.

By Matthew Heller
9/2/08