This week’s question comes from a reader who wishes to remain anonymous:
Q: “If you dropped off your child at school and later that day, the school resident doctor noticed your child had a fever and the school never calls you but does tests and draws the child’s blood. The doctor misdiagnosed your child with a wrong illness at the same time infects the child with an STD that the child could not possibly have or know about! Your child is now dismissed from school for several days and your family life is placed in a state of turmoil – one, because they didn’t notify you of the child illness; and two, keeping the child and performing unauthorized tests and it turns out that they were fine but in the process infected with a disease because of their negligence.”
A: As a parent of two small children, I find this alarming. I hope you find the following helpful. As you did not state whether the school was public or private, I am assuming it is a public institution. California Education Code Section 49407 discusses the rights and responsibilities of a school when dealing with an injured child.
Section 49407 states: “No school district, officer of any school district, school principal, physician, or hospital treating any child enrolled in any school in any district shall be held liable for the reasonable treatment of a child without the consent of a parent or guardian of the child when the child is ill or injured during regular school hours, requires reasonable medical treatment, and the parent or guardian cannot be reached, unless the parent or guardian has previously filed with the school district a written objection to any medical treatment other than first aid.” So, a school must first try and locate the parent if there is an illness or injury before undertaking any action. If the parent cannot be located then the treatment given must be reasonable. Here, the school never attempted reaching you so, from the facts presented, the school would not benefit from the immunity provided by Section 49407.
Even had the school tried to reach you, taking your child’s blood was inappropriate as blood tests are not normally taken for diagnosis of a flu. Certainly, from what you have presented, there was no pressing health crisis requiring a blood draw. California Education Code Section 49460 states that written parental consent is required before a blood panel can be taken from a child. This is so even for a pupil who voluntarily elects to participate in a standardized health assessment of children in public schools.
Given that there was no consent to treat your child, or draw blood, the action of drawing blood constitutes battery against your child. This, arguably, would not be an act of medical malpractice because there had been no consent given to undertake the blood draw. This is important because, under a law called the Medical Injury Compensation Reform Act (MICRA) of 1976, there is a cap on damages of $250,000, unchanged since 1976, for noneconomic damages (i.e., pain, suffering, humiliation, anxiety, stigma associated with an STD). This was one of the reasons Proposition 46 was on the ballot in November, to adjust this amount for inflation. Since this draw was without consent, MICRA arguably does not apply and your child would be entitled to have a jury decide what amount of money is appropriate to compensate your child without a cap. Additionally, an argument can be made that this is grounds for punitive damages as the conduct willfully violated your child’s rights.
Even if the court ruled, somehow, that this conduct was encompassed within medical negligence, there is a strong case for liability. Indeed, if the standard of care is followed, there is no reuse of any needle so there is no risk of cross-contamination. It can be argued that this is a case of res ipsa loguitur: Latin for “the thing speaks for itself.” Since this is an event that does not happen in the absence of malpractice, the fact that it happens indicates that there was most probably malpractice. In other cases of infection, the Appellate Courts have held that the danger of infection from an unsterile instrument, or a dirty field of operation, is a matter of such common knowledge that a jury is authorized to draw the reasonable inference that an infection was caused by negligence where an unsterile instrument is used, or the operative field is not properly sterilized.
You should report this conduct to the Medical Board which, pursuant to California Business and Professions Code Section 2221, is required to investigate and take disciplinary action against anyone who knowingly fails to follow infection control guidelines thereby risking transmission of bloodborne infectious diseases.
Get yourself a good trial lawyer to bring legal action on behalf of your child. This should not be tolerated.