Criminal Law

In our legal system, the same act can be the subject of two kinds of legal proceedings - one in the criminal system and the other in the civil system. The criminal law functions to provide redress for acts which are viewed as harmful to society. Criminal law today is created primarily by statutes written and voted into law by state legislatures. The state brings the action against the defendant, on behalf of the victim and society in general. If the defendant is found guilty, the sanctions may include a fine, probation or prison as punishment for the wrong, and deterrence to others who might commit the same crimes.

In contrast, the civil system provides a forum for private lawsuits. Within this system, tort law provides an avenue for individuals to seek damages when they believe that the defendant's conduct has been harmful to them. Damages for tort suits in the medical field consist primarily of monetary compensation designed to pay the plaintiff for the harm he or she has suffered, but they may also included injunctive relief - a court order for the defendant to do or refrain from doing some particular kind of conduct.

Generally, a healthcare provider has an obligation to protect patient confidences, and legally, the provider can not disclose patient information without the consent of the patient. However, there are some circumstances in which the providers duty to maintain confidentiality conflicts with a duty to warn third parties.

The case of Tarasoff v. Board of Regents of California first examined this problem of conflicting duties. In Tarasoff, a psychologist, in the course of treating a patient, was given strong reasons to believe that the patient intended to kill a young woman upon her return from vacation. The psychologist called university security, but when the patient was released after a short period of detention the psychologist made no effort to contact the individual against whom the threats had been made. The patient did in fact kill Ms. Tarasoff, and her estate sued the psychologist for his failure to warn her of the threat to her life.

The court concluded that the psychologist had breached his duty to warn, despite the lack of a physician-patient relationship, and the usual requirement of patient confidentiality. Although the Tarasoff case is only legally binding in the California courts, many other states have followed this approach and have adopted the duty to warn third parties under certain circumstances.

Duty to Warn II

This duty to warn third parties has been extended to other types of cases as well. In one case the physician's failure to warn a spouse of the clustering nature of tics infected with rocky mountain spotted fever, after her husband died of the disease, was viewed as a breach of the physician's duty to warn her.

In a Pennsylvania case involving hepatitis, the failure of the physician to accurately inform the patient of the length of time she could transmit the disease to her partner, which led to the patient's resumption of sexual relations and ultimate infection of her partner, was viewed by the court to be a breach of the doctor's obligation. The court found that the third party could sue the physician if he was within the class of persons whose health was likely to be threatened by the patient's reliance on the erroneous information.

Applying these approaches to the Lakeside case, an argument could be made that the absence of a statute mandating confidentiality of HIV information or prescribing particular steps to be followed by a physician seeking to disclose HIV information, the courts may find that the doctor has an obligation to warn third parties who are identifiable, and who are at risk of serious harm if the patient does not disclose her HIV status.

Lakeside and Civil Law

If Ms. Lakeside does not disclose her HIV positive status to Mr. Lakeside, and he becomes infected as a result, he may have a claim against her for transmission of the disease. One line of cases which can be used to provide an analogy involves the transmission of herpes via sexual contact. If the defendant knew or should have known of the herpes infection, he or she may be responsible for damages suffered by the plaintiff as a result of the infection. Consent to sex is not necessarily a defense here, because the plaintiff consented to sex, not to being infected with a sexually transmitted disease.

A similar theory might be used by Mr. Lakeside if Ms. Lakeside does not inform him of her HIV positive status and continues to engage in unprotected sex with him. Mr. Lakeside could bring suit if he becomes infected with HIV as a result of her failure to tell him of her infection. At least one HIV case has been brought under this theory, and the decision not to hold the estate of the infecting partner responsible turned on the lack of proof that he knew or should have known he was infected at the time of the sexual intercourse.

Lakeside and Criminal Law

Depending on the way in which the state criminal laws are written, Ms. Lakeside might be guilty of a criminal violation if she engages in sexual intercourse with her husband and does not disclose to him that she is HIV positive. For example, the Illinois legislature enacted a statute which criminalizes the knowing transmission of HIV via sexual contact or other means.

In states where there is no specific HIV transmission law, a variety of criminal offenses can be used in HIV cases, these include attempted murder, assault or reckless endangerment.

Diagnosis of HIV infection may have serious legal implications for an individual. Inquiry into an individual's reasons for not wanting to disclose his or her status may be important. The patient may fear physical abuse, family disapproval, loss of housing or insurance or employment. The appropriate referral to a social services agency or attorney can more fully address these concerns.

State Legislation

A number of states have enacted legislation to provide explicit guidelines for the circumstances under which a physician may breach patient confidentiality concerning HIV status. Generally, legislatures are concerned with maintaining confidentiality because of concerns that patients will not seek testing and treatment unless confidentiality is assured. However, this concern must be balanced against the public health goal of preventing the spread of infection.

In some states contact tracing to identify those at risk for transmission of HIV is required, while in others it is not. Whether the physician has a duty to warn may also depend on whether there is contact tracing in the state.

Each state is developing its own laws in this area, so please be sure to check the law in your state to determine if a statute governing disclosure of a patient's HIV status exists. The following sources may provide information of the laws in your jurisdiction:
1. local AIDS assistance organizations
2. your state legislature
3. Westlaw or Lexis legal search companies
4. AIDS law projects of metropolitan areas.