Can Employees Who Wrongly Flunk Drug/Alcohol Test Sue the Testing Lab for Medical Malpractice?  

In addition to potentially fatal misdiagnoses and erroneous treatment decisions, mistakes during the specimen collection and testing process can expose your lab to risk of liability under state medical malpractice laws. But what if the victim isn’t a patient but an employee of a company that hires your lab to perform drug and alcohol testing rather than deliver medical treatment? What, if any, legal recourse do employees have against you if your carelessness in administering the drug/alcohol test leads to a false result that costs them their job? Consider the following scenario.

SITUATION

A commercial pilot loses his flying license after flunking a random blood-spot alcohol test required by his employer. The pilot claims the positive result was false and blames it on the lab technician’s use of an ethanol-based alcohol pad in violation of United States Drug Testing Laboratories’ (USDTL) rules. He sues the testing lab for negligence in failing to properly train the technician. But he doesn’t provide the lab 60-days’ defendant notice required by the state medical malpractice statute, aka, the Tennessee Health Care Liability Act (THCLA). So, the lab asks the court to dismiss the case.

QUESTION

Does the pilot have a valid negligence case against the lab, assuming he can prove his claims?

1. No, because his failure to provide the required THCLA notice doomed his malpractice claim
2. No, because the lab’s duty of care was owed to the client, i.e., the employer, and not the pilot
3. Yes, because use of the alcohol pad in violation of USDTL rules is medical malpractice
4. Yes, because use of the alcohol pad in violation of USDTL rules is negligence

ANSWER

1. The pilot has a legally valid claim against the lab for negligently administering the blood-spot alcohol test

EXPLANATION

This scenario, which is based on a recent Tennessee case called Cahoon v. Premise Health Holding Corp., 2021 U.S. Dist. LEXIS 113169, 2021 WL 2474460, illustrates the negligence/malpractice liability of labs to employees they test as part of an employer’s drug/alcohol testing arrangement. Bottom Line: Although rules may differ from state to state, testing labs are generally liable to employees for regular negligence, but not medical malpractice. While that may sound like little more than a technical distinction, it can have significant practical consequences to the extent that medical malpractice laws typically include special defenses, legal procedures and other liability limitations that don’t come into play in a lawsuit for ordinary negligence. So, D is the right answer.

WHY WRONG ANSWERS ARE WRONG

A is wrong because the court found that the pilot’s case was an ordinary negligence rather than a medical malpractice lawsuit. Explanation: As in other states, the Tennessee THCLA statute covers negligence in providing “health care services.” The alcohol test performed in this case didn’t count as “health care services” because it was provided for the purposes of employment rather than medical treatment. The court also cited a previous case using the same reasoning to dismiss a medical malpractice lawsuit against a DNA testing lab for allegedly botching a paternity test. Thus, the 60-day notice rule didn’t apply and the court said the pilot could take his case to trial.

B is wrong because courts across the country have found that drug/alcohol testing labs do have a duty of care to the employees they test, even though their client is the employer that hires them. The reason for this is common sense: Employees have a lot to lose, including their jobs and professional reputations, if careless practices by the lab result in their falsely testing positive for drugs or alcohol.

C is wrong because to the extent it actually does violate professional standards, use of the alcohol pad in violation of USDTL rules would constitute negligence, not malpractice, at least in this context in which no medical treatment was provided. However, it would amount to malpractice if it occurred in an actual diagnosis and treatment setting.

Takeaway

Labs that perform drug/alcohol testing on employees of an outside client for employment rather than medical treatment purpose may be liable to employees for negligence, but not medical malpractice. Accordingly, if employees sue for negligence, specific rules, procedures and limitations contained in state malpractice laws wouldn’t apply. That may help or hurt the lab’s case, depending on the circumstances involved.