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January 2019 – General Liability Newsletter

Random Drug Testing: Medical Malpractice?

Mike Walsh, AIC, CPCU

Liability Claims Manager

This month’s newsletter addresses random drug testing and whether claims involving such testing fall within the scope of medical malpractice. Consider this claim, still being scrutinized in the legal discovery process.

The plaintiff in this claim worked for his employer for several years as an offshore management professional.  He supervised offshore crews, conducted quality control inspections and supervised the inspections of piping and rigging. The complaint alleges he performed his job duties capably and met his employer’s expectations as evidenced by pay raises, promotions and performance evaluations.

The plaintiff had previously undergone numerous random drug tests on behalf of his employer without any problems. He was directed to report to a clinic for administration of a hair sample drug test.  The results of that test were positive for marijuana. This set off a series of such drug tests with conflicting results. The test conducted by the defendant confirmed the initial “positive” result.

The claim alleges the hair specimen was collected in an unsanitary manner; the hair sample was mislabeled; the hair sample was cross-contaminated and the testing facility did not follow the appropriate chain-of-command in the handling and transfer of the specimen.

Do such claims fall within the parameters of the Medical Malpractice statute?  It just so happens that the only other similar type of claim we have handled was about 20 years ago and the medical malpractice issue went all the way to the Louisiana Supreme Court.

In that case, the court first noted that the Medical Malpractice statute “limits the liability of health care providers (the $500,000 “cap” on damages) in derogation of the general rights of tort victims; thus, any ambiguities in the Act should be strictly construed.”

The court ruled that, at the time of the drug screen, the plaintiff was not receiving medical care but was only being tested for the presence of drugs– a condition of which the plaintiff presumably was already aware. Thus, unlike employment physicals, the plaintiff in this case was not relying upon the physician to inform her of a physical condition she was unaware of. The plaintiff was directed to the lab for the drug screen and not as part of treatment for a medical condition.

Therefore, we urge all healthcare risk managers to review their drug screen policies and procedures to ensure there are no gaps in the process that could result in a claim for uncapped damages.

If you have any questions related to this newsletter, please contact:

Glenn Eiserloh, CHSP
Senior Risk Consultant
Steve Johnson, COSS, CHSP, COEE
Senior Risk Consultant
Mike Walsh, AIC, CPCU
Liability Claims Manager