Extra Lab Testing On Blood Sample: No Liability For Non-Consensual Treatment
Legal Eagle Eye Newsletter for the Nursing Profession
January 1997
Quick Summary: If the patient has consented to blood being drawn for a particular test or tests, and one or more additional tests are performed on the same sample without the patient’s consent to the additional tests, the patient has no right to sue.
For a medical malpractice lawsuit based on lack of informed consent, there must be an invasion of the patient’s physical integrity for which the patient has not consented. NEW YORK SUPREME COURT, APPELLATE DIVISION, 1996.
The physician told the patient he would be drawing blood to test for cytomegalovirus (CMV.)
He also intended to test the patient for human T-cell leukemia virus (HTLV). However, he did not pass this intention along to the patient, did not get her consent to have blood drawn for HTLV testing and did not get her consent for the lab to test her blood sample for HTLV.
For the record, the New York Supreme Court, Appellate Division, assumed one needle puncture was made, that the first tube of blood extracted was sent for CMV testing, and that a second tube was drawn from the same needle puncture, for HTLV.
The court did not express approval for the physician’s actions. However, as there was only one actual breach of the patient’s physical integrity, and there was consent for it, the patient had no right to sue over a second tube of blood being drawn or over its being tested (positive) for HTLV. Hecht vs. Kaplan, 645 N.Y.S. 2d 51 (N.Y. App., 1996).