Defendant brought to hospital for drug overdose. Defendant very uncooperative duing transport and has to be restrained by paramedics and hospital staff. While trying to lavage the defendant he reaches up and bites the nurse on the breast.

According to 1.07(a)(41)(A)- a public servant is an officer, employee or agent of the goverment.

Although the nurse is working for a private hospital, that hospital has a contract to provide indigent healthcare for the county.

It's a stretch...what do ya'll think?

I think lavaging a defendant should be done with restraint,decency and compassion. Lavaging catfish on the other hand, now that's something else.
Exit only

I certainly don't think you can make a nurse a public servant under the circs presented. You would also want to look at how out of his mind the defendant was due to his OD. Was he so out of it that even recklessly would be a stretch for an assault charge? That would be my concern, proving intent and state of mind, heck if it is an OD I would suspect you would have difficulty showing an ability to form intent. I would recommend you review the suspect's glascow scale rating on the ER records, and have your investigator review those records to see what impressions were noted by the er staff as to his level of coherency. If it appears he was coherent and had enough presence of mind to form an intent (intentionally, knowingly, recklessly), then I would have the investigators talk to those present to make sure they all had the same impression as to his mental state at the time the act occurred.

It would be my guess that this would be a hard case to prosecute.

BTW, how would one bite that part of the nurse's anatomy whilst having a tube for gastric lavage thrust down one's throat? Might that biting action on a OD patient be consistent with the gag reflex?

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Was he so out of it that even recklessly would be a stretch for an assault charge?

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But if he's voluntarily jacked up on something, doesn't that negate the defense to the mens rea?