I just heard about a woman who wasn't even done with labor and was told she would have to take a COVID test. She and her husband respectfully declined as they said they had been quarantined. They were then informed that if they did not take it then they would be put on a federal investigation list and would not be allowed to go home with their baby.

This doesn't seem legal to me but it's pretty difficult to fight these things in the heat of the moment. Regardless of how you feel about a COVID test, it could be something else next time.

My wife is having a baby in about a month, and in light of this, I thought it might be prudent to know what lawyer I want to call in a situation like this. Would this generally be something any "medical lawyer" would handle?

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    Sound like most likely a scaremongering rumor. Poster is (per profile) from Texas, which has pretty much fully reopened with minimal restrictions. The "federal" level in this case could only be the US government, which is famously not organizing any mandatory contact tracing, or even mandatory quarrantine measures for those found to be infected. – T.E.D. Jul 8 '20 at 20:19
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    @BVernon Can you provide a source for this story? Pretty much every aspect of this story seems highly unlikely – Hilmar Jul 8 '20 at 20:34
  • I'm sure you could decline the test, but the facility could then decline to treat you. Not taking the test would basically just be stupid and ignorant and I doubt anyone who would do such a thing is supplying a reliable account of the activities. – Tiger Guy Jul 8 '20 at 21:33
  • @Hilmar I'm not at liberty to share who this was, however I can tell you the hospital it happened at. It was at Texas Health Alliance Hospital in Fort Worth. – BVernon Jul 8 '20 at 22:08
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    The story could be intentional bullshit or the storyteller misunderstood the circumstances and therefore unwittingly relayed a false story. Have you phoned the hospital you expect to use for the birth to ask them their policies with regard to such circumstances? Do you and your wife intend to refuse a covid test (and thereby expose yourself to this alleged risk)? I think those are practical things to consider before 'medical law'. Also, perhaps you intended to ask about the broader case, under what circumstances a hospital could legally prevent you from taking your baby home? – Lag Jul 9 '20 at 9:20

"Medical lawyer" is really the wrong focus, this is an issue of civil rights. The question would be, is it a violation of your civil rights to prevent you from taking your baby home; is it legal for the federal government to investigate people who refuse to take a covid test? You can take the question along with pertinent evidence to a civil rights attorney.

To pick a non-random hospital's web page, they note that "Any person having surgery or a procedure, including birth, at a Texas Health hospital will be tested for COVID-19 to provide appropriate care for the patient, and for the protection of visitors and the care team", and "you will need to be tested at admission to help safeguard you and the care team". In answer to the question whether you can decline testing, they say "Testing is recommended to promote the health of you and your baby. Patients who have COVID-19 can have a weakened immune system and may have inflammatory symptoms that can compromise healing. We encourage you to speak with your provider about the best decision for you", which doesn't explicitly say "No you may not", nor "Yes, you may". However, they cannot literally force you to take the test: at most, they can refuse to treat you.

In answer to the question "Will I be separated from my baby if I test positive for COVID-19?", they say "Texas Health will follow guidelines from the American Academy of Pediatrics, American College of OB/GYN and the Centers for Disease Control for how to keep you and your baby safe during your hospital stay. Ultimately, any decisions about care for you and your baby will be between you and your provider, based on what is best for you both". This is also not crystal clear.

There are three primary legal issues, putting a worst spin on their policy. They say up front that you will be tested prior to admission: the question is whether you can decline to take the test but force them to admit you. Now we are closer to the realm of a medical negligence attorney – they can refuse to treat you, but that might leave them liable.

The second question is whether they can temporarily take the infant away, against the mother's wishes (for example, hold the infant in a separate facility while the mother is in the hospital). The third question is whether they have direct authority to take the infant away when you leave the hospital. The third question gets a plain and simple no. The Texas Dept. of Family and Protective Services has some authority in such a matter, but taking a child requires an investigation and a court order.

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    @user6726 Your third paragraph is in error; Texas DPFS may, in serious circumstances, take custody of a child without previously having obtained a court order. On this DPFS page (titled "Will DFPS Take My CHild Away?") dfps.state.tx.us/Investigations/… this language appears: Depending on what is going on with the family, DFPS may get a court order to remove children or it may remove children before getting a court order. – DavidSupportsMonica Jul 9 '20 at 2:16
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 9 '20 at 13:41

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