T
raditional liability concerns that may lead to malpractice claims for drug and alcohol testing facilities
include failure to maintain chain of custody, false positives, vicarious liability for a Medical Review Officer, sexual misconduct, and products liability, to name a few. Emerging areas of concern include family testing, testing in substance abuse programs, medical marijuana, pharmacogenetics, and drug testing prior to surgeries. Tis article provides examples of both traditional and emerging liability concerns that can lead to lawsuits, and also identifies other factors to consider that can impact the outcome of lawsuits.
Traditional Liability Concerns
Example #1: Chain of Custody Chain of custody issues arise out of allegations of samples that are improperly handled, or when samples are mixed up. For example, let’s say ABC Company sends Sam and Doug to be drug tested. Sam has not been using drugs, but Doug oſten comes to work while under the influence of drugs. Sam’s and Doug’s specimens are mixed up because they came to complete their drug tests at the same time. Due to the mix-up, Sam, who was not using drugs, is terminated by ABC Company. Doug remains employed, continues to work, and is involved in an accident at work injuring another employee. Sam files a lawsuit against his employer for wrongful termination and against the laboratory for improperly administering the drug test that resulted in his termination. While investigating Doug’s workplace accident, ABC Company finds that he was under the influence of drugs and that the test results the laboratory provided were incorrect. Had ABC Company received the correct results, it would have terminated Doug and avoided the workplace accident entirely. ABC Company also files suit against the laboratory.
www.datia.org
Example #2: False Positive XYZ Company employs Dan, who drives the same route every day. Dan is involved in an accident and the post-accident drug test comes back positive for amphetamines. XYZ Company terminates Dan on the basis of the positive test. Dan explains that he was not on amphetamines, but that he does take a doctor-prescribed medication known to produce a false positive for the presence of amphetamines. Dan files suit against his employer and against the laboratory for the inaccurate test results that lead to his termination.
Example #3: Vicarious Liability for a Medical Review Officer
John Doe’s Drug Testing, Inc., is a small drug and alcohol testing company. All of its testing services are handled by employees, but it uses an independently contracted Medical Review Officer (MRO) as needed. John Doe’s Drug Testing, Inc., performs a drug test for Jane Smith, and the results are reviewed by the contracted MRO. Jane does not dispute the positive test result for drugs, but she states that the positive test result arises out of prescribed medications. Te MRO disagrees and Jane is terminated by her employer. Jane files suit against the contracted MRO and John Doe’s Drug Testing, Inc., alleging that John Doe’s Drug Testing, Inc., is vicariously liable for the incorrect actions of the MRO.
Example #4: Sexual Misconduct Sharon works for ABC Company. ABC Company requires random drug testing of all employees. A male employee of the laboratory administers the drug test to Sharon. Te drug test is negative and Sharon returns to work with no apparent issues or concerns stated. A month later the laboratory receives a lawsuit alleging sexual misconduct by the laboratory employee administering the drug test to Sharon.
Example #5: Products Liability Nancy’s Drug Testing, LLC, buys all of their phlebotomy equipment from ABC
Manufacturing. ABC Manufacturing makes new equipment, but also sterilizes equipment that can then be reused. On December 1, Nancy’s Drug Testing, LLC, receives an order for testing and proceeds to use the new equipment for ten patients who require phlebotomy services in the month of December. On January 15, Nancy’s Drug Testing, LLC, is notified by ABC Manufacturing that it is recalling the phlebotomy equipment sent to Nancy’s Drug Testing, LLC, because needles in that batch were potentially contaminated due to improper sterilization. Tree out of the ten patients become sick and sue Nancy’s Drug Testing, LLC, and ABC Manufacturing.
Emerging Areas of Concern
Example #1: Family Testing Jessica and Billy are divorced and share custody of their fiſteen-year-old son, Jason. Jessica alleges that Billy is aware that Jason is using illegal substances when he stays with Billy and that Billy has taken no steps to prevent Jason from using drugs. Billy claims Jason is drug-free. Kay’s Drug Testing Company administers a court-ordered drug test to Jason; it comes back positive for drugs. Jessica wins full custody of Jason based on the positive drug test results. Billy files suit, alleging the drug test results are incorrect, and sues for infliction of emotional distress, trauma for the loss of custody of his son, and atorney’s fees.
Example #2: Testing within Substance Abuse Programs
Susie has batled addiction for years and is currently enrolled in an outpatient methadone program that requires her to be regularly tested for other narcotics. Susie’s drug test comes back clean and she ingests the methadone prescribed for her. Susie is found dead the next day from an overdose of narcotics, including methadone and other illegal narcotics. Her family sues the methadone clinic, the prescribing physician,
datia focus 25
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52
