BY ARTHUR S. LEONARD
Girlfriend has claim for failure to alert patient-boyfriend he is HIV-positive
The New Jersey Appellate Division, an intermediate level court, revived a lawsuit against a hospital and several doctors filed by a former patient’s girlfriend who claimed she was infected with HIV because they neglected to tell her boyfriend he had the virus. The August 10 ruling, in an opinion by Judge José Fuentes, followed the lead of a 1995 California appeals court case in finding that the defendants’ failure to inform the patient about his test result violated a duty to that patient’s future sex partners.
C.W., 29 years old and suffering from “confusion, changes in mental status, and progressive lethargy,” was treated at Cooper Hospital in 1994. With the doctors unsure of what was causing his problems, one resident suggested doing an HIV test. C.W.’s mother gave consent for the test, since he was in no mental state to do so.
C.W. quickly improved, was moved out of intensive care, and got a new attending physician. He was discharged several days later, before the HIV results came back from the lab. His discharge record does not indicate that an HIV test had been ordered, even though the consent form signed by his mother was on file.
The hospital received the positive results several days later, but there is no record that the information was passed on to either of C.W.’s attending physicians. Nor is there any record of the positive result being reported to the state, though that is a requirement of New Jersey law.
C.W. soon met E.Y. and the couple had a baby girl J.W. the following year. In 2000, C.W., feeling unwell, was tested for HIV, and learned he was positive. E.Y. then also tested positive, though their daughter was found not to be infected. E.Y., in a deposition, testified that sex with C.W. was her only risk factor.
On behalf of the couple and their daughter, a lawsuit was filed naming both attending physicians at the hospital, C.W.’s personal physician, the doctor in charge of the hospital’s pathology department, and the hospital, claiming injuries due to their negligence in not informing C.W. of his HIV status. The trial court, finding the defendants had no duty to E.Y. or the couple’s daughter, dismissed the suit as it applied to those two, resulting in this appeal.
The trial judge particularly noted that New Jersey’s HIV confidentiality law would have restricted the defendants from revealing C.W.’s HIV status to anybody other than him. The judge also found that the hospital and doctors could not have any duty to E.Y.—whom C.W. had not even met when he was hospitalized and whose identity was unknown to them until she sued them—much less J.W., who was not yet born.
Writing for the appeals court, Judge Fuentes found, by contrast, that a health care provider who authorizes HIV testing of a patient has a duty to inform the patient of the result, especially if it is positive, to protect both the patient and anyone that person might unwittingly infect, and that this duty persists after the patient’s discharge. Since that duty in part is aimed at protecting people the patient might later come in contact with, “E.Y. falls within the scope of foreseeable individuals who would be harmed by Cooper Hospital’s failure to notify C.W. of his HIV status,” Fuentes wrote.
The court rejected the defendants’ argument that New Jersey’s HIV confidentiality law would have barred them from informing E.Y. of C.W.’s status, “This argument misses the point,” wrote Fuentes. “The question is not whether defendants have a duty to notify E.Y. directly of C.W.’s HIV test results. The duty of care to a third party such as E.Y. requires the health care provider to take all reasonable measures to notify the patient of the results of his HIV test, and thereafter counsel the infected patient on how to avoid transmission of the virus.”
Since, J.W., the couple’s daughter, did not become infected, Fuentes upheld the dismissal of claims made on her behalf. Although the court did not come out and say it directly, it appeared that the judges did not consider J.W. to have sustained any tangible injury, a startling lack of imagination considering the fallout for a child whose parents are both HIV-positive.
For his part, C.W., whose claims were not part of this action, has reached settlements with some, but not all, of the defendants.
gaycitynews.com
