Malpractice Consult

By Johnson, Lee J. | Medical Economics, September 9, 1996 | Go to article overview

Malpractice Consult


Johnson, Lee J., Medical Economics


Testing for HIV without a patient's consent

Recently, I nicked my finger while removing a wart during a patient's annual physical. In addition to doing the regular panels, I also had his blood tested for HIV. The test came back negative, so I didn't tell him about it. I figure, "No harm, no foul." Could I be sued for doing an HIV test without the patient's consent?

Yes. HIV testing without a patient's consent is illegal in almost every state. A Massachusetts plastic surgeon recently agreed to pay a $10,000 settlement to a patient in a similar situation.

The surgeon had stuck himself with a needle during surgery. He then drew blood from the patient and sent it to a laboratory for testing without asking permission. The test was negative.

The patient learned of the test, however, and sued the surgeon for battery, intentional infliction of emotional distress, and unfair and deceptive trade practices.

The physician claimed that he didn't realize his action was illegal. Still, he had little defense and had to agree to the settlement. In many jurisdictions, the physician could also face a fine or sanction by a state disciplinary body.

Even telling the truth can get you sued

A patient I treated sued another doctor for malpractice. Her attorney asked my opinion about that physician's level of care. I sent him a letter saying I thought the doctor had met the appropriate standard. Now the patient is suing me for violating her confidentiality and for making it impossible for her to win her case. Can I be sued for telling the truth?

You can be sued for almost anything these days, but it's unlikely that your patient would prevail. You stand a good chance of having the lawsuit dismissed before trial.

That's what happened in a recent Indiana case. A patient who suffered facial disfigurement as a result of plastic surgery underwent a corrective procedure by another physician. Her attorney asked the second doctor's opinion about whether he should bring a malpractice suit against the initial surgeon. In a letter, the subsequent treating physician said he didn't believe that there had been any negligence. …

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