Drug screen obtained without consent

by auntiem114 » Thu Jun 28, 2012 01:05 am

My boys applied for life insurance. The consent we were told was for nicotine, when the results came back they were tested for HIV, nicotine and cocaine. Nowhere on the consent does it say anything about nicotine or cocaine. The screen was obtained without informed consent. What recourse do we have

Total Comments: 12

Posted: Thu Jun 28, 2012 04:19 am Post Subject:

Actually, you might have standing to assert a medical battery claim or violation of provacy claim. I would speak with an attorney, many attorneys give free consultations

Posted: Tue Jul 03, 2012 02:09 pm Post Subject:

The consent we were told was for nicotine, when the results came back they were tested for HIV . . . Nowhere on the consent does it say anything about nicotine or cocaine.


And is this a problem because your boys use nicotine or cocaine? I disagree with Counselor Crawford on the issues of "medical battery" and "privacy".

The insurance companies are required by law to uniformly test everyone (or no one) for HIV. If they choose to pay for it, they may also obtain nicotine or any drug screen results.

The screen was obtained without informed consent.


I seriously doubt that. The agent may not have told you everything that would/could be tested for, but the receipt for your first payment did.

If you actually read ALL of the various consents you are authorizing in the application for insurance (forget what "the agent told you", they should all be stated in the Conditional Receipt you were given), applicants give the insurance company the right to obtain a variety of "information" about the proposed insured -- including obtaining "Protected Health Information". Nicotine and drugs are just two other pieces, as is HIV/AIDS.

This is not a privacy matter at all. And I doubt any judge or jury would find evidence of "medical battery". At the most, you might have a misrepresentation claim against the agent. But what are your damages?

Sounds like someone received a tobacco-use rating and the 100% higher premium that goes with it. Or a decline for cocaine use. Those are not "discriminatory" actions. They are, instead, sound underwriting decisions.

Posted: Wed Jul 04, 2012 06:40 pm Post Subject:

And is this a problem because your boys use nicotine or cocaine? I disagree with Counselor Crawford on the issues of "medical battery" and "privacy".



That's not why it would be a problem. It's not about the results. It's a huge invasion of privacy to have someone checking what is on our insides without permission.

The insurance companies are required by law to uniformly test everyone (or no one) for HIV.



Not in most places. Whether someone gets tested for HIV is determined by the insurance company based upon the age of the insured and the amount of insurance. I imagine that you meant something a little different than what you wrote.


I seriously doubt that. The agent may not have told you everything that would/could be tested for, but the receipt for your first payment did.



I am sure that you are correct about this and the OP did consent.

Posted: Wed Jul 04, 2012 10:28 pm Post Subject:

Not in most places.


You need to read state insurance laws on the topic. Insurance companies are required to perform a minimum "uniform" standard of testing for HIV, and no testing of anyone is a form of minimum uniform testing. So there are some companies that issue some policies without an HIV test. But none offer more than $25,000 or $50,000 under that circumstance that I am aware of.

Each company also has the right to set underwriting guidelines that demand certain levels of testing or other information needs in order to approve an application. But insurance companies do not have discretion to test some people for HIV and not others when both apply for the same coverage and policy form.

Posted: Wed Jul 04, 2012 10:38 pm Post Subject:

It's a huge invasion of privacy to have someone checking what is on our insides without permission.


I would agree with this if it was being done without consent. But life insurance applications either have multiple consents built into them, or there are additional forms used to give notice and obtain consent. Every place where consent is required also requires a signature.

The problem the OP has is that the agent did not say exactly what the testing would/could reveal. And this is a common failure on the part of some agents who simply fill out the app and then say, "They need you to sign here and here and here," and the applicant/insured fails to ask, "What is it that I am signing for?" Many of us are more thorough in our discussion of consents and authorizations, as I am sure you are.

But, I think you have to agree, the insurance company is entitled to know if a person is a drug user/abuser, whether that drug is nicotine, alcohol, cocaine, heroin, vicodin, oxycontin, or . . . .

We ask questions about it, and some people give us wrong answers, just like they do about their general health, their driving records, their credit history, their education, height and weight, and (sometimes) age. Persons who lie about some or all of those things represent a moral hazard to the insurance company. Saliva, blood, and urine screening helps to identify them to the insurance companies, and helps keep the cost of insurance down for standard risks.

Posted: Thu Jul 05, 2012 03:26 pm Post Subject:

George is 15. Jim is 70. 100,000 is being purchased on both of them from XYZ Insurance Co. George doesn't get tested for HIV. Jim does. According to you, the insurance company is breaking the law.

Posted: Thu Jul 19, 2012 07:26 am Post Subject:

In California, that is 100% correct.

Posted: Thu Jul 19, 2012 03:29 pm Post Subject:

Max,

Are you incorrect in your understand or are some (most? every?) insurance company breaking the law?

I'm asking because I don't know of any insurance company that will make a 3 year old get an HIV test for $99,000 of insurance in California, but they will make a 60 year old.

If you think that they are breaking the law, are you going after them? How dare they not test 3 year olds for HIV.

Posted: Fri Jul 20, 2012 02:45 am Post Subject:

The concern is not about the insurance carrier’s adherence to HIV testing procedures, rather the concern is whether or not the insurance carrier has fully informed the subject that their blood is being subjected to certain forms of testing. Without consent, it is deemed a common law battery even if the carrier is authorized to perform the testing

Posted: Fri Jul 20, 2012 03:45 pm Post Subject:

Crawford Law Firm,

I have no argument with what you are saying.

The issue is that there is very little chance that they did not sign a consent that allowed for this testing.

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