Malpractice, Liability for Phlebotomy

Vol. 22 • Issue 7 • Page 63

For The Technologist

Imagine this scenario: A phlebotomist from your lab begins his daily rounds of blood collections for the day. He enters room 204 to draw a 75-year-old woman who was admitted for atrial fibrillation. When he introduces himself and asks for consent to draw her blood, she shouts, “No!” and asks you to leave and not come back. The patient made it very clear that she did not want the phlebotomist to draw her blood.

This same phlebotomist has drawn her for several days for a Prothrombin Time (PT) and Activated Thromboplastin Time (aPTT) without incident, so he reports this situation to the nurse. The nurse informs the phlebotomist that the patient has formed a complaint against him and did not want him, in particular, to draw her blood. The blood had been drawn from the dorsal side of her hand for several days, which was now bruised and swollen. The patient complained of moderate pain, especially when she moved her fingers. Upon observation there was a diffuse ecchymosis over the dorsal side of the hand that extends up the forearm to the elbow. A blister formed at the site of venipuncture on her hand.

Legal Terms

Your phlebotomists are provided with education and training in the proper collection of blood specimens. An important part of the training includes being proficient in the technical skills of phlebotomy, thus making them accountable for performing these skills. The fear of a lawsuit is a common concern to all healthcare practitioners, including the phlebotomist. An error in judgment or technique may cause harm to a patient and could bring an action against the individual and the laboratory. No one wants to be called into a court of law for malpractice.

The phlebotomist has a professional liability, as do all other healthcare professionals. Professional liability is being legally responsible for actions, and ensuring “the standard of care” is followed.

Malpractice is an act that does not meet the standard of professional competence or the delivery of substandard care that results in provable damage or injury. This can be error or omission, negligence or intentional wrongdoing.

Negligence is defined as failure to perform an action consistent with the accepted standard of care. To prove negligence four elements are involved – duty, breach of duty, harm and causation. Breach of duty is synonymous with the standard of care.1 The standard of care is the level and care that a healthcare professional would be expected to adhere to to provide treatment for patients. The duty is established by standards of the profession, regulatory agencies, professional organizations, national standards such as Clinical Laboratory Standard Institute (CLSI)2 or state statutes.

Earlier Scenario Challenge

Referring back to the case described in the beginning of this article, did a breach of duty occur? The phlebotomist has responsibilities that include competence, expertise and knowledge of good phlebotomy practice. Was there a failure to follow the standard of care and is the phlebotomist liable for damages?

Liability for an action means that you are legally responsible for your actions and can be held accountable for the consequences of that action. Three main areas of error are technical, judgmental and administrative gaps. Examples of technical errors are improper technique, incorrect angle, improper identification, hematoma and not performing a two point check before the bandage is placed on the patient. Examples of judgmental are incorrect site selection, arterial nick and injury. Examples of administrative gaps include position qualifications, not checking references, limited introductory probation period or poor employee training, inadequate policy and procedure training manual, lacking a phlebotomy certification or poor pre-employment screening.

Archive Image

Click to view larger graphic.

Phlebotomists can take many measures to protect themselves against a malpractice suit:

• quality education and training,

• precise and detailed documentation,

• clear, effective communication,

• following established procedures and protocols accurately,

• performing duties in the scope of practice,

• reporting complaints to supervisor and

• keeping accurate and meticulous records.

If you or your phlebotomist must go to court, answer all deposition questions to the best of your knowledge, be prepared of the situation and the exact events that occurred, dress and act professionally and have documented procedures and policies ready. Types of deposition questions that could be asked can be found in the Table. Give clear, concise answers. The key defense against a malpractice suit is to show that the standard of care was followed. The majority of legal issues faced by a phlebotomist usually are negligence with not following the standard of care.

Earlier Challenge Resolution

A formal complaint was made against the phlebotomist and the laboratory for not following the standard of care. The phlebotomist lost two weeks of work without pay until after an investigation took place. A charge of negligence was brought against the phlebotomist for drawing the patient multiple times in her hand for coagulation studies that created a large hematoma and a blister. The blister became infected and the patient needed several surgeries, including multiple skin grafts.

Following the standard of care, the phlebotomist should have known that in drawing coagulation studies, the patient was most likely on a blood anticoagulant. When patients are on blood anticoagulants they tend to bleed. Pressure should have been applied until bleeding was totally stopped. A two point check should have been done to ensure all bleeding stopped before putting on a bandage. Blood should not be drawn from a site that has a hematoma.

Kathleen Finnegan is clinical associate professor, Stony Brook University.


1. Moffett P, Moore G. The standard of care: Legal history and definitions. Western J Emerg Med 2011;12(1):109-112.

2. Clinical and Laboratory Standards Institute: Procedures for the Collection of Diagnostic Blood Specimens by Venipuncture; Approved Standard -Sixth Edition H03-A6, 2007.

About The Author