Do you have a case if you’ve lost employment due to a mixed up/inaccurate drug test?

My wife is a surrogate and has been in a program for about 6 months now. We’ve gone through tons of paperwork, meetings and counseling sessions with the expecting couple (in which we drove hours for each meeting) and medical testing, birth control etc. Then 2 weeks ago she had her drug test which came back positive for opiates. We’re in shock. We have kids and live a clean life; we don’t smoke drink anything. The couple now wants to drop us and even though they say they believe us the surrogacy company doesn’t want to pay for re-testing. My wife states they never wrote her name on the sample after she sat it on the counter.

Asked on February 14, 2013 under Malpractice Law, Texas


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

Your wife could sue the drug testing company for negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable drug testing company would have exercised under the same or similar circumstances to prevent foreseeable harm). 

To prove negligence, your wife will need to prove duty (of due care mentioned above), breach of duty (failure to exercise due care), actual cause, proximate cause, and damages.

Actual cause means but for the drug test not being performed properly, would the test have been positive?  If the answer is no, actual cause has been established.

Proximate cause means are there any unforeseeable, intervening events which would relieve the drug testing company of liability?  If the answer is no, proximate cause has been established.

Damages means the amount of compensation your wife is seeking in her lawsuit for negligence against the drug testing company.  Her damages would be lost income as a surrogate.

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