Can a doctor report a faileddrug test taken on a pregnant woman3 months before, if the mom and baby were clean at birth?

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Can a doctor report a faileddrug test taken on a pregnant woman3 months before, if the mom and baby were clean at birth?

My friend’s OB gave her a drug test without her knowledge (when it wasn’t required by her private health insurance). She tested positive for pot from smoking before she learned of the pregnancy. She was mad and said that she wanted to go to another doctor, and he said he was going to report her to CPS. She didn’t use drugs at all during the pregnancy (once she found out that she was pregnant), and both she and the baby were clean at birth. (the second OB drug tested her at every visit, since she got the failed test result from first OB). The day her baby was born, he called CPS to report her for the failed test. Legal?

Asked on January 21, 2011 under Malpractice Law, Texas

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Well sometimes the drug panel is taken when the doctor has blood tests done for other purposes. If the doctor only said I am taking blood only for test x and y but fails to indicate he also had her blood tested for z, she may have an issue in then proving harm.  Anyone can sue anyone for any bad thing that happens to him or her, but the real issue becomes what are the damages, what harm was caused to the mother in this situation by testing her and then reporting her for the failed first test? If it is damages to her reputation, it depends on what he reported and whether she lost custody of the child. If he simply reported she tested positive for drugs in test 1, and reported her right after test 1, your friend may not really have a viable claim.  If he waited until the child was born, first of all how did he know (because if she changed doctors, the second doctor could not release her medical information without her permission). HIPAA may protect her. If he simply decided or assumed she was still taking drugs and reported her, your friend may have a defamation claim and because it concerns drug use, she actually may not have to prove actual harm to her reputation.


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