Tisinger Vance, P.C.

The Legality of Drug Testing Pregnant Women

Note: This article represents the opinions of the author, and may not be relied upon as legal advice. The author may be contacted at sminor@ttvglaw.com.

Many hospitals routinely test pregnant woman for drug use without first obtaining the woman's consent. There are four issues raised by such drug testing practices. They are:

The necessity of obtaining "informed consent" before performing a urine drug screen on a mother or child;
The necessity of obtaining a waiver of the constitutional right against self incrimination before performing a drug screen on a mother or child;
The legal obligation to report positive drug test results to the Department of Family and Children Services ("DFACS") or a branch of law enforcement; and
The potential liability for failure to report positive test results.

Informed Consent.
1. Legal Background.
  
  Informed consent essentially involves a medical professional fully informing a patient of the risks of, and alternatives to, a proposed course of treatment. Consent to treatment or diagnostic tests obtained without disclosure of the hazards involved is inadequate. Mull v. Emory University, 150 S.E. 2d 276 (Ga. Ct. App. 1966). The practitioner must fully explain the hazards of a properly performed procedure, diagnosis or treatment. An explanation of the hazards of an improperly performed procedure is not required. Until very recently, Georgia law required informed consent only for the following procedures: (1) surgical procedures under general, spinal or major regional anesthesia, (2) amniocentesis, and (3) diagnostic procedures involving the injection of a contrast material. See, Ga. Code Ann. § 31-9-6.1 (2001), see also, Young v. Yarn, 222 S.E. 2d 113 (Ga. Ct. App. 1975) (reversed by, Ketchup v. Howard, 543 S.E. 2d 371 (Ga. Ct. App. 2000)).
  
  A recent Georgia case, Ketchup v. Howard, expanded the requirement for informed consent to all "medical procedures." Ketchup creates a cause of action for lack of informed consent for patients who suffer damages from medical procedures if, after being informed of all material risks and available alternatives that are generally recognized by a reasonably prudent medical professional, a reasonable person would have decided not to have the procedure performed. Ketchup does not define "medical procedures."
2. Analysis.
  
  Collecting urine for a drug screen could easily be deemed a "medical procedure" which, under Ketchup, gives rise to the duty to obtain the patient's "informed consent." Ketchup further indicates that this duty is fulfilled only by explaining to the patient the "material risks of a proposed treatment or procedure ... [and] ... available alternatives." All evidence indicates that the "material risks" which must be disclosed relate only to medical risks and would not include, for example, the risk of being caught for committing a crime. Therefore, so long as collecting the specimen does not involve catheterization, it seems clear that there is no risk of physical harm in collecting a urine specimen or in the performance of a drug screen. As such, there is likely no need to obtain the patient's informed consent before collecting urine from the patient or her child.
3. Waiver of the Constitutional Right Against Self Incrimination.
  1. Legal Background.
    
    In Ferguson v. City of Charleston 121 S.Ct. 1281 (2001), the United States Supreme Court very specifically addressed urine drug testing of pregnant women. That case held:
    1. Urine tests were "searches" within the meaning of the fourth amendment to the U.S. Constitution; and
    2. Performing a drug screen, absent the patient's consent, was an unreasonable search where the purpose of the screen was to further the interests of law enforcement.
    The hospital in Ferguson had a testing policy that used pre-established criteria to determine which patients would be tested. The criteria were:
    1. No prenatal care;
    2. Late prenatal care, after twenty four weeks gestation;
    3. Incomplete prenatal care;
    4. Abruptio Placentae;
    5. Intrauterine fetal death;
    6. Pre-term labor of no obvious cause;
    7. Intrauterine growth retardation of no obvious cause;
    8. Previously known drug or alcohol abuse; and
    9. Unexplained congenital anomalies.
  2. Analysis.
    
    The Court suggested that these criteria were not formulated for the purpose of medical diagnosis or treatment, but were instead formulated to catch and prosecute probable drug users. As such, the use of such criteria would be inherently suspect. Therefore, the better approach may be to require the physician to order drug screens based upon the physician's determination that they are needed for the proper medical treatment of the mother or child.
    
    The Court pointed out numerous other facts which indicated that the hospital's testing policy was designed to further law enforcement, rather than medical, purposes. For example, the prosecutors and police were extensively involved in the creation and day to day administration of the policy. The drug testing procedures were designed to ensure the test could be used in criminal prosecutions of the mothers. Finally, the hospital had no special medical treatment protocol for the mothers or children who tested positive. The Court indicated that the purpose behind the drug testing determines whether a patient must knowingly waive his or her constitutional right against self incrimination. Consequently, if a physician orders the test and documents that the purpose of the test is to ensure the proper medical diagnosis or treatment of the mother or child, it may not be necessary to obtain a waiver of the right against self-incrimination from the patient.
  3. Legal Obligation to Report Positive Results to DFACS or a Branch of Law Enforcement.
    1. Legal Background - The Rule of Confidentiality.
      
      As a general rule, information in a medical file is deemed confidential. See, Bazemore v. Savannah Hospital, 155 S.E. 194 (Ga. 1930); McDaniel v. Atlanta Coca-Cola Bottling Co., 2 S.E. 2d 810 (Ga. Ct. App. 1939); Dennis v. Adcock, 226 S.E. 2d (Ga. Ct. App. 1976) and Georgia Code Annotated § 24-9-40 (1993) and 31-7-6 (1966). Improper disclosure of such information, therefore, can lead to liability. See, Id. The law does, of course, permit disclosure of confidential information voluntarily and without the patient's consent in certain circumstances. How these exceptions apply to the circumstances at issue is analyzed below.
    2. Exception for Reporting Child Abuse.
      
      One potentially applicable exception applies to suspicions of child abuse. Georgia law requires hospital and other medical personnel to report all reasonable suspicions of child abuse. Georgia Code Annotated § 19-7-5(c)(i) (1999). See also, Baldwin County Hospital Authority v. Trawick, 504 S.E. 2d 708 (Ga. Ct. of App. 1998). This statute also provides immunity from civil and criminal liability for reports made in good faith. Georgia Code Annotated § 19-7-5(f) (1999). Good faith appears to require only that the report was made for the purpose of protecting the child's welfare. See, Baldwin County Hospital Authority, Id. The statute also, however, provides that any person required to report suspected child abuse may be guilty of a misdemeanor if they "knowingly and willfully" fail to do so.
      1. Analysis of the Child Abuse Reporting Exception.
        
        The child abuse reporting statute lists a number of different types of child abuse. The only forms of child abuse which are potentially relevant to this analysis, however, are those which involve physical injury to a child "by other than accidental means," and "neglect or exploitation of a child by a parent or caretaker." A mother's ingestion of illegal substances is unlikely to fall within any of these definitions. First, while it may physically injure the fetus, such injury would probably be deemed accidental (i.e., indirectly resulting from the mother's conduct) rather than purposeful. Likewise, the use of illegal drugs cannot necessarily be equated with "neglect or exploitation" of a fetus. Finally, it is unlikely that a fetus would even be deemed a child under current Georgia law. In Billingsley v. The State, 360 S.E. 2d 451 (Ga. Ct. App. 1987), the Court of Appeals found that an unborn fetus was not a "person" for the purposes of the vehicular homicide statute. The child abuse reporting statute defines a child as "any person under 18 years of age." O.C.G.A. § 19-7-5(b)(2) (emphasis added). Consequently, medical personnel are probably not obligated to report a mother's use of illegal drugs pursuant to the child abuse reporting statute.
    3. Exception for Reporting Patient Abuse.
      
      A second potentially applicable exception applies to suspicions of "patient" abuse. This statute requires physicians, nurses and hospital employees to notify law enforcement whenever they believe a patient has been intentionally physically injured. Georgia Code Annotated § 31-7-9 (1985).
      1. Analysis of the Patient Abuse Reporting Exception.
        
        The Patient Abuse Reporting statute does not define "patient," thus leaving open the possibility that it could apply to fetuses. Like the child abuse reporting statute, however, Georgia Code Annotated § 31-7-9 (1985) requires that the patient's physical injury have been intentionally inflicted. I expect few drug abusing pregnant women would be found to have taken drugs with the intent of injuring their fetus.
    4. Common Law Exceptions.
      
      Courts have, on occasion, intimated that all citizens should report known crimes. In Roberts v. The United States, 445 U.S. 552 (1980), the U.S. Supreme Court stated that all citizens have "a deeply rooted social obligation" to report known criminal behavior. Id., at 558. This "social obligation" to report known criminal behavior has been acknowledged in the Georgia case of Ross v. State, 326 S.E. 2d 194 (Ga. 1988), and has, in some states, been elevated to a qualified privilege to release privileged medical information to law enforcement. See, W. Road, Jr., S. Chernoff & C. Esley, Medical Records and the Law, (1985) at 105-106, see also, In Re Albemarle Mental Health Center, 256 S.E. 2d 818 (N.C. Ct. App. 1979).
      1. Analysis of Common Law Exceptions.
        
        One may argue that the common law "moral obligation" to report criminal behavior outweighs patient confidentiality where there is a reasonable basis for a belief that the mother's use of illegal drugs will directly affect her child. Whether such an argument would prevail is doubtful. As of today, hospital staff persons are given no clear immunity from liability for breaching patient confidentiality should they notify police, DFACS or any other third party of the results of a mother's drug test without the mother's consent.
  4. Liability for Failure to Report.
    1. Legal Background - No Duty to Third Parties.
      
      As it appears that hospital staff may incur liability for reporting drug test results to law enforcement, the logical next question is "can I get in trouble if I fail to report?" The legal issue is whether one may be held responsible for failing to prevent third parties from causing harm to others. The general rule is that one is not liable for the acts of others. The courts have, however, recognized two exceptions which may apply to the circumstances at issue. First, one with a special relationship with another may have a duty to prevent that person from harming others. The second exception arises where one has a special relationship with the person harmed.
    2. Legal Background - Exception for Relationships to the Perpetrator of Harm to Another.
      
      A celebrated California case, Tarasoff v. Regents of the University of California, 55 P.2d 334 (Cal. 1976), established the rule that when a therapist determines (or should have determined) that his patient presents a serious threat of violence to another, he has an obligation to use reasonable care to protect the intended victim against the danger. The duty may require the therapist to call the police, warn the victim or advise others likely to apprize the victim of the danger.
      
      A modified Tarasoff doctrine has been adopted in Georgia. In Bradley Center, Inc. v. Wessner, 296 S.E. 2d 693 (1982), the Court held that where a physician knows or should know the patient is likely to cause bodily harm to another and where the physician exercises "control" over the patient, the physician must exercise that control with such reasonable care as to prevent the patient from harming others.
      
      The Georgia courts have, in the years since their decision in Bradley, greatly limited the applicability of the case. For example, the Court has refused to extend liability where the mental patient did not meet the criteria for involuntary commitment set forth in Georgia Code Annotated § 37-3-1(9.1) (1993). See, Ermutlu v. McCorkle, 416 S.E. 2d 792 (Ga. Ct. App. 1992). Likewise, even where a physician concluded a patient required involuntary commitment, the court found that neither the physician nor the facility had the requisite "control" over the patient because the physician had instructed that the involuntary commitment order would be valid only after the patient received medical clearance, and that clearance never came. See, Baldwin v. Hospital Authority of Fulton, 383 S.E. 2d 154 (Ga. Ct. App. 1989). Likewise, in Keppler v. Brunson, 421 S.E. 2d 306 (Ga. Ct. App. 1992), the Court found that physicians did not have the requisite control over a patient who later killed a person where the patient was being treated as a voluntary in-patient.
      1. Analysis of Exception for Relationships to the Perpetrator of Harm to Another.
        
        Under Tarasoff, a physician may have a duty to protect a newborn if it is clear that the newborn's mother is likely to cause harm to the newborn. Furthermore, a clear and present danger to the newborn would likely outweigh the mother's right of confidentiality and, therefore, give rise to a duty to inform someone of the mother's drug use. However, Georgia's version of the Tarasoff rule requires more than just proof that the physician knows or should know that the mother presents a serious threat of physical harm to the newborn.
        
        To impose liability under the rule in Bradley, a court would have to make two specific findings. First, as is the case under the Tarasoff rule, it would have to find that the defendant knew or should have known that the mother's drug use would likely cause bodily harm to the infant. For the purposes of this analysis, we will assume this to be the case. The Bradley rule requires an additional finding, however: that the hospital had the ability to exercise "control" over the mother. The concept of "control" has been very narrowly defined. At a minimum, current Georgia case law requires that the mother meet the requirements for involuntary commitment to a mental facility. It might even require proof that the mother was under a pre-existing involuntary commitment order. See, Ermutlu, Baldwin, and Keppler; Id. Additionally, Bradley has not been applied in Georgia to anyone other than a mental health facility or worker.
    3. Legal Background - Exception for Relationships to the Person Harmed.
      
      The second exception to the general rule that there is no duty to control the conduct of third persons arises where there is a special relationship between the defendant and the person who is harmed. This exception was analyzed by the Court in Landis v. Rockdale County, 445 S.E. 2d 264 (Ga. Ct. App. 1994). In Landis, a woman sued the Rockdale County Police for failure to arrest a visibly intoxicated woman who killed the plaintiff's husband in a drunk-driving accident two hours later. While the court found that the police had a general duty to the public to protect it from drunk drivers, tort liability would not be imposed on the police unless there was a special relationship with the member of the public who was hurt. "In order to determine whether such a special relationship exists, [the court adopted] the following requirements: (1) an explicit assurance by the [defendant], through promises or actions, that [the defendant] would act on behalf the injured party; (2) knowledge on the part of the [defendant] that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the [defendant's] affirmative undertaking." Landis, Id. at 266.
      1. Analysis of Exception for Relationships to the Person Harmed.
        
        To impose liability based on the hospital's relationship to a newborn, a court would have to make three specific findings. First, that the hospital, through statements or actions, clearly indicated that it intended to protect the newborn. Second, that the hospital was aware that its failure to notify police could lead to harm to the newborn. For this analysis, we can assume this to be true. Finally, Landis requires that the newborn justifiably rely on the hospital's indication that it would offer protection. As this criteria of the test does not appear readily applicable to the situation at hand the Court would probably ignore this requirement under the theory that it is reasonable to assume that the hospital has a duty to protect all infants.
        
        Surprisingly, under the Landis test a hospital would have no liability for failing to protect the newborn, so long as the hospital made no effort to protect the child. See, e.g., Feise v. Cherokee County, 434 S.E. 2d 551 (Ga. Ct. App. 1933) (holding that "the evidence shows that despite the specific knowledge that inaction probably would lead to harm, the [defendants] in this case did nothing. Therefore, under the Supreme Court's decision . . . we must [find in favor of the defendant].").
    4. Conclusions and Other Considerations.
      
      In conclusion, the current state of Georgia law indicates that a hospital would not be liable for failure to notify law enforcement of positive drug tests. However, this is a very close issue, and, given the emotional impact of the circumstances, it is clear that a court could rule against a hospital. Indeed, there are a number of indications that the Court of Appeals would, given the chance, rule against a hospital (i.e., rule that a hospital does have a duty to report under these circumstances). First, the Court has clearly indicated its displeasure with the Landis rule by the sarcastic tone of its decision in the Feise case. Second, prior to being overruled by the Supreme Court in Landis, the Court of Appeals indicated that the public policy against drunk driving could be the basis of holding policemen liable for failing to protect members of the public. There is probably no stronger public policy than the protection of children. The Court could, therefore, use this public policy to impose on hospitals a duty to report drug using parents when necessary to protect a child from a high probability the parent's drug use will harm the child.
      
      Even if the courts do create such a duty, however, it does not mean liability will necessarily follow. A hospital would still have the ability to defend itself on the facts, even though they may not have an absolute legal defense. (Absolute legal defenses permit the judge to throw the case out prior to trial; whether a defendant succeeds on a factual defense is a question the jury must determine.) In addition, courts sometimes hold that it is an absolute legal defense if the harm is simply too remote from the negligence. See, e.g., Davis v. Mongelsdoff, 673 P. 2d 951 (Ariz. 1983), (finding a doctor could not be held liable to a nonpatient injured in a car wreck caused by an epileptic seizure when the doctor had, seventeen years before the wreck, failed to warn his patient that epilepsy impaired the ability to drive).
  CONCLUSIONS
  1. Informed consent is not necessary for the collection of a urine specimen or for the testing of that urine for drugs;
  2. It is necessary to obtain a waiver of the constitutional right against self-incrimination if the purpose of the drug screen is to further interests of law enforcement rather than medical treatment. This means that a hospital probably should not use any criteria to trigger drug screens which it not motivated by medical treatment needs. If a physician orders a urine test for medical reasons, however, the Ferguson case indicates that no waiver of constitutional rights is required.
  3. The hospital is not legally obligated to report positive test results.
  4. While not currently the law in Georgia, it may be more likely than not that the current appellate courts would permit the hospital and its staff to be sued by a child harmed as a direct result of the mother's drug use, if the staff knew or should have known the drug use would cause physical harm to the child, and the staff failed to take reasonable steps to protect the child. (A hospital would still have numerous factual defenses to such an action, but it would likely have to prove those defenses in a trial, rather than be released by the judge on summary judgment.)

The Legality of Drug Testing Pregnant Women

CONCLUSIONS