The New Jersey Office of the Attorney General (OAG) is suing Virtua Health over allegations that the hospital network has been drug testing pregnant women without their knowledge or consent, and then reporting any positive results to child services.
The OAG subsequently alleges that those policies have resulted in Virtua patients accounting for a disproportionate amount of referrals for substance-affected infants, and unfairly subjected new mothers to months of invasive follow-up investigations from state agencies.
New Jersey Attorney General Matthew Platkin and the state Division on Civil Rights (DCR) announced the action today on behalf of two women, identified only as K.K. and B.C., whom they said were victimized by a policy that is discriminatory and violated their fundamental right to privacy.
Both women tested positive for the presence of drugs in their urine after having consumed poppy seed bagels. Both say that they were not informed that their urine would be collected for a drug screening; instead, they assumed that the samples they provided would be analyzed for other purposes related to their pregnancies.
No state or federal law requires universal drug testing of patients seeking to be admitted for pregnancy, labor, and delivery care, the complaint indicates; and no other patient population is universally tested for drugs at Virtua.
Neither, the complaint alleges, were the women whose urine was analyzed informed that that was the purpose of providing the sample, which means they did not have the opportunity to consent to being tested.
Combined with mandatory reporting that obligates the hospital to notify the the Division of Child Protection and Permanency (DCP&P) of any positive toxicology test result from a pregnant patient, the OAG alleges that Virtua’s policy led to an outsized reporting of suspected abuse and neglect cases.
From 2021 to 2023, three Virtua hospitals — in Camden City, Mount Holly, and Voorhees — accounted for almost 25 percent of all DCP&P referrals for suspected substance-affected newborns, even though 46 hospitals in the state make such referrals.
Moreover, the OAG noted, verbal drug screenings and observation of newborns could achieve the same intended effect, whereas urinalysis can produce false positive results.
Invasive follow-up investigations
According to the complaint filed by the OAG, K.K. said she arrived at Virtua Voorhees around 9:30 a.m. October 20, 2022, late in the third trimester of her second pregnancy, because she believed her water had broken. Neither she nor the friend who accompanied her recalled any nurse asking her to provide urine for a drug screening.
K.K. discovered that she had tested positive for opiates after an alert on her phone notified her that she had new test results on her medical chart app. She had not been screened for drug use, nor asked any questions about her test results. Her child was born healthy, without any signs of a drug-related concern; neither did the baby test positive for any substances.
Nonetheless, a second sample of K.K.’s urine also tested positive for opiates, and she was interviewed by DCP&P investigators before she was allowed to leave the hospital with her baby. Other DCP&P case workers went to her home to interview her seven-year-old child without her present, and to walk through her home.
Although K.K. was allowed to return home with her newborn, DCP&P conducted follow-up visits, another walk-through of her home, interviewed the fathers of her children, and conducted a hair follicle test of her older child. Although she was cleared of suspicion, K.K. feared that the test results and the DCP&P investigation could be used against her in custody disputes.
B.C. came to Virtua about three months after K.K., at 8:15 a.m. December 22, 2022, for a scheduled induction of labor for the birth of her first child. She had been dealing with gallbladder issues, and was checked into the high-risk obstetrics unit at Virtua.
B.C., who works as an emergency room nurse, saw a cup for a urine sample in her room, and filled it without being asked, presuming it would be used to analyze her kidney function. Like K.K., although B.C.’s records note that she consented to providing the sample, neither she nor her husband, who was present at the time, recall her being informed that her urine would be tested for drugs.
A few hours later, B.C. was told that her urine had come back positive for the presence of opiates. B.C. at first believed her sample may have been mislabeled, and subsequently wondered whether the poppy seed bagels she had eaten for breakfast could have yielded a false positive test result.
Later, as B.C. had begun contractions, but before her epidural was administered, a case manager came by to discuss the test results. B.C. asked whether the test could be re-administered, or whether she could submit to a follicle test instead. She was told no.
After 36 hours of labor, B.C. gave birth to a healthy baby who did not display symptoms of drug abuse, nor tested positive for substances. But she was told that her sample results had been confirmed, and that DCP&P would be notified of the case.
The following day, B.C. spent several hours of her Christmas morning waiting to be interviewed by DCP&P before she could be discharged with her child. Two more case workers were waiting to inspect their home when they finally arrived, and a different case worker interviewed her at length two days later.
DCP&P also interviewed B.C.’s husband and stepson separately, and asked the police whether there had been domestic disputes at their house, which B.C. discovered through a friend. According to the complaint, B.C. still worries whether the investigation and test results could come back to interfere with her ability to work as a nurse.
Virtua responds
Virtua spokesperson Daniel Moise offered the following statement in response to the announcement of the lawsuit:
“We hold the safety and well-being of each patient paramount, especially our newborns. We have a relentless commitment to evidence-based, equitable care for every family, additionally meeting the highest standards of regulatory compliance.
“While it’s our policy to respectfully withhold comment on ongoing legal matters, we are steadfast in continuing to create safe, exceptional maternity experiences for thousands of South Jersey families each year.”
The state is seeking to enjoin Virtua from carrying on with the universal drug testing policy, retrain its staff, pay civil penalties for allegedly violating non-discrimination law, and to make restitution to any victims named or un-named in the suit.
