Special Notice of Appellate Decision
Doctor liability: inappropriate disclosure of false positive HIV test results led to patient’s permanent depression
Doe v. Arts, ___A.2d___, No. L-224-95, 2003 WL 21251440 (
N.J.Super.A.D., June 02, 2003).
The Appellate Division of the New Jer-
sey Superior Court upheld a circuit court verdict against a family physician who gave a patient a false positive HIV result, which caused the patient to suffer permanent depression and post-traumatic stress disorder.␣ The appellate court held that a␣ false positive HIV result is a ground for a claim of negligent infliction of emotional distress, and further, that the doctor who gave it was liable for all of plaintiff’s subsequent damages, even though other doctors failed to re-test the plaintiff for HIV. In 1991, the plaintiff, a 34-year old photographer, had an HIV test at the urging of his fiancé, whose former hus- band had previously died of AIDS.␣ The test was performed in the office of Dr. Paul Arts, the fiance’s family physician, who
had had scant experience with HIV/AIDS patients.␣ Dr. Arts provided no HIV coun- seling either before or after the test; misread the test results as being positive for HIV; and delivered the results by phone to Ms. Penna, rather than directly to the plaintiff. At Dr. Arts’ suggestion, plaintiff pre- sented to the HIV/AIDS program at the Robert Woods Johnson Medical School, but was told that his T-cell count was too high to qualify for their services. He was referred to Raritan Bay Medical Center for follow-up.␣ Neither facility re- tested the plaintiff for HIV. Meanwhile, plaintiff became depressed and began contemplating suicide. In 1994, three years after his false HIV diagnosis, the plaintiff sought mental health counseling. The therapist, noting plaintiff ’s good physical health, became suspicious of his HIV re- sults and asked to review them. She determined that plaintiff was, in fact, HIV-negative. After an initial euphoria, however, plaintiff ’s depression remained. He had lost both his photography business and his fiancé, and
was diagnosed with permanent post traumatic stress disorder, major depres- sion, loss of sex drive and severe insomnia. In a second trial after remand, the Su- perior Court, Law Division, Middlesex County, found that Dr. Arts had deviated from the standard of care and awarded patient $300,000 in damages. Raritan Bay Medical Center was not found negligent.␣ (Robert Woods Johnson Medi- cal School had been dismissed before the second trial.) Dr. Arts appealed. The Su- perior Court, Appellate Division, affirmed the verdict, finding that, contrary to Arts’ contentions, 1) the verdict was not a miscarriage of justice, and the trial judge had not erred in 2) his damages in- struction or 3) allowing plaintiff’s counsel to use unidentified medical literature.␣ As of June 2, 3003, $35,527.75 in post-judg- ment interest and $126,932.87 in pre-judgment interest had accrued to the plaintiff ’s award, for a total of $462, 460.62.
Plaintiff ’s counsel Robert K. Jenner, Balti- more, MD
40
Trial Reporter
Summer 2003
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