Kansas Personal Injury Lawyer.
Add mixed drinks, a sporting event, driving too fast, an S-curved road, and a driver reaching for his cell phone as it was about to fall. What do you get?
Here it was a spinal cord injury rendering the driver a quadriplegic. After the auto accident the plaintiff filed for a benefit under an insurance policy issued by an insurance company called a hospital intensive care policy. The policy was denied saying the plaintiff was intoxicated relying on the hospital report showing a .25 blood alcohol concentration. This test was taken two hours after the accident. Different procedures for taking blood depend on the purpose. Some solutions used to prepare the draw site might contain alcohol and contaminate the blood sample.
So the Judge excluded the toxicology report and the plaintiff won. The Court of Appeals decided the insurance company satisfied the foundation requirements on the report, so plaintiff lost. The Supreme Court pointed out that although there was a report the witness could not say who performed the test. Therefore there was no direct testimony whether proper procedures were followed. The report was excluded, and plaintiff won.
With a blood test, the person who actually took the blood will have to testify, and testify that they followed the proper procedure. The court seems to focus on the fact in this case that whoever took the blood did not put their initials on the sample. Medical personnel rarely have a personal recollection of the specific events dealing with a patient when they must testify years later. The rule for medical personnel: write it down.
You can see a case can go either way sometimes. Your lawyer will investigate the facts and the law to present your case in court. Call us.