RN in rehab program challenged flawed alcohol tests.

Position:Nursing Law Case of the Month

CASE ON POINT: Berry v. National Medical Services, Inc., 257 P.3d 287 (8/12/2010-KS

CASE FACTS: In August of 2003, Judith Berry, a Registered Nurse, licensed by the Kansas State Board of Nursing (Board), after admitting to alcohol dependency, agreed to participate in the Board's assistance program, (Kansas Nurses Assistance Program KNAP), which included submitting to Iliture random testing. She claimed that during her participation in the program she maintained her recovery and sobriety, and that she did not relapse. The Board had contracted with Compass Vision, Inc. (Compass), to serve as the third-party administrator of KNAP's alcohol testing program. Compass contracted with National Medical Services, Inc. (NMS), to provide alcohol testing for nurses in KNAP. Nurse Berry brought negligence and consumer protection claims against NMS and Compass, (collectively Defendants), based on urinalysis tests conducted as part of her participation in KNAP. The District Court dismissed the nurse's petition, with prejudice, for failure to state a claim upon which relief could be granted. However, the majority of the Court of Appeals panel reversed the dismissal of the nurse's case. NMS appealed to the Supreme Court of Kansas. Defendants were leading proponents of ethyl glucuronide (EIG) testing. The presence of EIG, a metabolite of alcohol, in urine reportedly provided proof of prior alcohol consumption, even after the alcohol itself has been eliminated from the body. The Defendants established a reporting limit of 250 ng/m I, at or over which EIG test results were reported as "positive" for drinking alcohol. The Defendants claimed that any EIG test result of 500 ng/ml, and above conclusively proved intentional consumption of an alcoholic beverage. As early as in March of 2004, published scientific literature suggested that many ordinary products, including Purell sanitizer and other hand sanitizers, used in hospitals throughout the country, contained ethanol that would metabolize as EIG, and incidental exposure to these products could show up at levels well above the 250 ng/ml cutoff. In September of 2006, the Substance Abuse and Mental Health Services Administration (SAMHSA), a federal agency that is part of the United States Department of Health and Human Resources, issued an advisory stating that EIG testing could be a valuable clinical tool, but it should not be used as the primal); or sole evidence that an individual prohibited from drinking, in a...

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