False Positive
Q: As a condition of my probation sentence, I was required to submit to periodic drug testing. One day, the probation officer took an oral fluid sample and sent it to the lab – to determine whether my saliva contained illicit or controlled substances.
In an erroneous written report, the lab informed the probation department that indeed my sample tested positive for marijuana. As a result, I was compelled to make multiple court appearances, and my probationary sentence was extended for many months.
A: In the past, defendants such as the lab have contended that their only relationship was with the probation department – not with you. They have objected that, if the law would imposed a duty of due care running directly to you – a mere third party – this duty would be owed to an untold number of people and result in a crushing burden of limitless liability.
In fact, the prospect of limitless liability is extremely small. The duty to do this testing and reporting with due care relates only to a narrow class of specific, readily identifiable individuals whose samples are accepted and tested.
A falsely positive test may result in the loss of current employment, the forfeiture of retirement benefits and the elimination of prospective employment opportunities. It may bear heavily on child custody decisions. The erroneous test may have far-reaching, permanent, and devastating effects on a person’s livelihood, family life and liberty.
Yes, a drug testing laboratory may certainly be held liable in tort to the subject of a drug test for failing to use reasonable care under the circumstances, notwithstanding the absence of a formal contractual relationship between the drug testing laboratory and the subject of the drug test.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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