Lawsuit by Man Erroneously Told He Had HIV Allowed to Go Forward

A diagnostics laboratory company and a staffing agency that provides employees to it must answer various claims asserted against them by a man erroneously told that he had HIV and herpes, a federal district court said Jan. 17 (Drew v. Quest Diagnostics, N.D. Ala., No. 5-13-cv-629). The U.S. District Court for the Northern District of Alabama partially denied motions by Quest Diagnostics and Aerotek Inc. to dismiss claims asserted by plaintiffs Kenneth and Elizabeth Drew. The court said the Alabama Medical Liability Act (AMLA), which applies in actions brought against health care providers based on a breach of the standard of care, didn’t provide an exclusive remedy for the plaintiffs, who complained that the companies’ negligence resulted in emotional harm and lost wages. The court refused to dismiss claims related to the defendants’ alleged negligence; negligent hiring, supervision, training, and retention; medical negligence; and invasion of privacy. It dismissed claims for negligence per se, outrage, and res ipsa loquitur. Sample Not Labeled In 2011, Kenneth Drew had a blood sample taken during a routine physical examination required by his military employer. The sample was drawn at Quest’s Huntsville, Ala., location by a technician employed by Aerotek. The sample either wasn’t labeled or was labeled improperly by the employee. The test results were sent to Drew’s physician, who subsequently told him that he had tested positive for HIV and herpes. Drew was required to tell his employer about the test results. The results were false. Drew claimed in his complaint that his marriage suffered as a result of the defendants’ negligence in handling his blood sample. Both Drew and his wife suffered extreme emotional distress, mental anguish, and embarrassment, and they lost time from work to attend medical appointments. Their complaint contained numerous causes of action, ranging from medical negligence to defamation. Quest and Aerotek moved to dismiss the complaint or for judgment on the pleadings. As an initial matter, they argued that AMLA provided the plaintiffs’ exclusive remedy for claims resulting from the alleged negligence of a health care provider. Plaintiffs alleging damages arising out of a breach of a medical standard of care have a right to assert only a single cause of action under AMLA, the defendants said. The court disagreed, citing Collins v. Ashurst, 821 So. 2d 173 (Ala. 2001). There, a patient sued her physician for removing the wrong ovary. She alleged three causes of action: medical malpractice, assault and battery, and trespass. The trial court dismissed the last two, saying that AMLA governed all actions between a patient and a physician. The Alabama Supreme Court reversed, saying that the law itself “recognizes the possibility that more than one type of action may be brought under that act.” The law “provides the applicable standard of care that governs all actions against health-care providers specified in the act; it does not contain language that would lead to the conclusion that the only available cause of action, in contract or in tort, is medical malpractice,” the supreme court said. Based on that decision, the federal district court concluded that “AMLA was not intended to pre-empt all other claims.” The court dismissed several other claims, including those for outrage, negligence per se, and res ipsa loquitur. The plaintiffs wouldn’t be able to recover for outrage, even assuming Alabama law recognized it as a separate tort, because the defendants’ alleged conduct wasn’t sufficiently outrageous, it said. The court noted that Alabama courts have allowed for recovery of emotional damages only in limited circumstances, and the plaintiffs’ circumstances weren’t among those considered outrageous. Takeaway: State liability acts do not necessarily protect health care providers from having multiple claims brought against them.