AIDS LITIGATION PROJECT II: Case Summaries - A National Survey of Federal, State, and Local Cases Before Courts and Human Rights Commissions

AIDS LITIGATION PROJECT II: Case Summaries - A National Survey of Federal, State, and Local Cases Before Courts and Human Rights Commissions

Department of Health and Human Services, Public Health Service, National AIDS Program Office - August 1, 1991
Larry Gostin, Executive Director, American Society of Law & Medicine, Professor of Health Law, Harvard School of Public Health, and Lane Porter, Chair, International Health Law Committee, American Bar Association

I. AIDS EDUCATION

[1]. Bean v. County of Los Angeles, A.C.L.U. AIDS Docket, July 1990.: FACTS: The plaintiffs allege that the county has failed to provide adequate AIDS education for minority populations. They believe that the Los Angeles County public education program about AIDS fails to address the growing AIDS epidemic within minority communities.; Update since the AIDS Litigation Project I:; Since this complaint was first reported in the AIDS Litigation Project I, the suit has been dismissed. However, one of the plaintiff organizations, the Minority AIDS Project, succeeded in gaining a grant from the county for AIDS education.

[2]. In re Santicola, Opinion No. 12274, N.Y. Educ. Dep't, Comm'r Thomas Sobol, AIDS Litigation Reporter 3/9/90.: FACTS: Parents Ronald and Martha Santicola claimed that the AIDS education curriculum adopted by Sachem Central School District did not comply with state guidelines requiring that AIDS information be taught as part of a "family life education component." The Santicolas claimed that teaching the practices used to prevent the spread of AIDS violated their Roman Catholic religious beliefs. Because this teaching did not include references to religious values, they claimed the teaching violated their constitutional rights as well.; Commissioner Sobol rejected their claim because it lacked merit. Sobol argued that the school's AIDS curriculum stressed abstinence as the most effective way to protect against AIDS. Sobol found that the curriculum met all of the requirements of the state law.

[3]. Ware v. Valley Stream High School, 75 N.Y.2d 114, 550 N.E.2d 420 (1989).: FACTS: The plaintiffs are members of the Plymouth Brethren, a religious group which believes in absolute adherence to Biblical teachings. They claim they are "faced with evil" in the form of a regulation of the New York public school system that AIDS education be taught in every class. The regulations require AIDS education in health classes, beginning in kindergarten. There is an exemption, available by written request of a parent, from that part of the AIDS education dealing with methods of prevention. However, the Brethren desire full exemption from the entire AIDS program.; The Brethren argue that their children would not be a threat to the public health, because they do not engage in any of the activities which are known to spread HIV. The Commissioner of Education denied the request for full exemption, because the State's interest outweighed the Brethrens'. The Commissioner wrote, "education is the most powerful and important weapon" against AIDS. He also reasoned that some children "may fall short of community expectations" so there was no guarantee that they did not need the education.; The Brethren then sued in the Supreme Court of New York. That court held in favor of the school department, because the Brethren were in the community and "not outside the zone of persons in need of protection," and because compelling state interests override the religious interests. The Appellate Court agreed with the Supreme Court. Now the Brethren appeal yet again.; ISSUE: Did the courts err in granting summary judgement against the children of the Brethren, who wish to be exempt from mandatory AIDS education due to religious beliefs?; HOLDING: The courts erred in granting summary judgement because it is possible that the Brethren could convince a jury that the First Amendment protects their right to an exemption.; REASONING: For the First Amendment to support a religious exemption from a government law or rule, there are two requirements. There must be a sincere religious belief which is actually burdened by the State, and there must be evidence that an exemption will not impede a pressing state purpose.; In this case, it has been proven that the Brethren's religious beliefs are sincere and that they are actually burdened by the requirement of AIDS education. The Brethren's children are not allowed to talk to other children, or to watch TV, see magazines or movies. They condemn all "evil" including sex outside of marriage. They fear that AIDS education might "jeopardize their place in the holy fellowship of God's Son."; The second requirement, however, have the parties "at loggerheads." There is a factual dispute as to whether the admittedly compelling state interest in AIDS education is outweighed by the First Amendment right to free exercise of religion. Because there is an issue of material fact to be determined, summary judgement was inappropriate. The case should go to trial.; DISSENTS: Two judges dissented from the majority opinion. One felt that there was no need for a trial because it was legally and factually obvious that the children should be exempt from the AIDS education, in order to accommodate a religious minority. The other judge believed that the interest in using education as a weapon against AIDS made it imperative that the children of the Brethren community learn along with the others.; Update since the AIDS Litigation Project I:; The announcement of this case as a complaint was reported in the AIDS Litigation Project I. Since that time the case has been appealed. The court has reversed the appellate decision granting summary judgment to the defendant.

[4]. Fink v. Board of Educ., 542 N.Y.S.2d 918 (1989).: FACTS: The New York Commissioner of Education has required all elementary and secondary schools to provide AIDS education as part of their health education program. Over 260 residents of the Tully Central School District petitioned the Board of Education to discontinue references to condoms and other contraceptives in AIDS education. When the Board refused, the residents filed suit.; STATUS: This case was dismissed on procedural grounds. The residents did not exhaust the administrative remedies they must pursue before the court will hear their complaint. The residents were advised to appeal to the New York Commissioner of Education before proceeding in court.

II. PROTECTION OF THE BLOOD SUPPLY

A. Standards of Negligence and Strict Liability

[5]. Kozup v. Georgetown Univ., 663 F. Supp. 1048 (D.D.C. 1987) aff'd in part and vacated in part 851 F.2d 437 (D.C. Cir. 1988), appeal after remand, 851 F.2d (D.C. Cir. 1990).: FACTS: The plaintiffs were parents of an infant who contracted HIV as a result of a blood transfusion given at birth in 1983. The plaintiffs sued the hospital and the blood bank that collected the blood donation. The child, Matthew Kozup, has since died of AIDS-related causes.; The federal district court dismissed the plaintiffs' suit. The Court of Appeals affirmed the judgement in favor of Georgetown, but allowed Kozup's claim that Georgetown committed a battery by giving Mathew transfusions without first obtaining his parent's consent. On remand, Georgetown prevailed in the battery claim, and the Court of Appeals now affirms that judgement.; Update since the AIDS Litigation Project I:; The district court decision was reported in the AIDS Litigation Project I. Since that time the case was appealed and heard by the U.S. Appellate Court for the D.C. Circuit.

[6]. Doe v. Cutter Biological, No. 89-15274, 9th Cir. U.S. Ct. of App., AIDS Litigation Reporter 8/11/89.: FACTS: The plaintiff is a hemophiliac serviceman who allegedly contracted HIV from contaminated AHF (antihemophiliac factor) which was manufactured by the defendant pharmaceutical firm and administered by the defendant Tripler Army Medical Center. The district court judge awarded summary judgment to each of the defendants.; The defendants requested that they be reimbursed for their legal costs. The district court judge denied this request, noting that it was too much to ask of the plaintiff, who could not afford it, and that the plaintiff brought the suit in good faith.; The plaintiff has appealed the district court decision maintaining that the court should recognize a market share liability theory because of the manufacturers' concerted action. The appeal contends that the manufacturers began to share information that AIDS may be transmitted through hemo-clotting products as early as 1983. The plaintiff asked that this issue be heard by the state supreme court. The appellate court has denied this request because state law is clear that a market share liability theory may not be used under Hawaii's blood shield law.; Update since the AIDS Litigation Project I:; The complaint as filed was reported in the AIDS Litigation; Project I. Since that time summary judgment has been awarded to the defendants and their request for legal costs has been denied. The plaintiff appealed to the 9th Circuit Court of Appeals asking that the case be certified to the state supreme court. This request was denied.

[7]. Kirkendall v. Harbor Ins., 887 F.2d 857 (8th Cir. 1989).: FACTS: Dee Kirkendall contracted HIV through a blood transfusion while undergoing surgery. Dee and his wife Ann brought suit against the blood supplier's insurer. Dee died during the litigation.; At the time of the donation, the donor was given information about groups high at risk for AIDS and self-exclusion was recommended for members of high risk groups. The donor was asked general questions about his health but was not confronted with the question of whether he belonged to any high risk group.; Though at the time of the donation there were no tests to detect HIV, several weeks later tests were available. However, blood in inventory, such as the unit that Kirkendall received, was not tested.; The plaintiff argues that the blood suppliers and thereby their insurance carriers are strictly liable for the consequential injuries that resulted from the "defective" blood. The plaintiff also argues that the defendant was negligent in its screening process and failure to test the blood for HIV.; ISSUES: 1. Should the dismissal of the plaintiff's strict liability claim stand?; 2. Should the dismissal of the plaintiff's claim that the blood supplier was negligent in failing to properly screen the donor stand?; 3. Should the dismissal of the plaintiff's claim that the defendant was negligent in failing to test for HIV the unit of blood Dee Kirkendall received stand?; HOLDING: 1. The district court's dismissal of the plaintiff's strict liability claim is affirmed.; 2. The district court's dismissal is affirmed regarding the plaintiff's claim that the defendant was negligent in failing to properly screen the donor.; 3. The district court's dismissal is affirmed regarding the plaintiff's claim that the defendant was negligent in failing to test for HIV the unit of blood which Dee Kirkendall received.; REASONING: 1. The plaintiff cannot maintain an action for strict liability against the defendant because blood is not a product as is required for a strict liability claim; it is considered a service under Arkansas law. Nor does federal law concerning blood preempt the Arkansas law, because the federal and state laws are not in conflict.; 2. The blood supplier followed all public health agency and industry recommendations when screening their blood donors. The plaintiff's argument that the defendant was negligent for failing to ask the donor specific questions about the donor's sexual orientation fails because the plaintiff cannot prove that had the donor been asked such a direct question, the donor would have answered truthfully and would have been prohibited from donating blood. Therefore the defendant's screening procedures were not negligent nor did they proximately cause Kirkendall's contraction of AIDS.; 3. Had the defendant tested all the blood in inventory, it would have required so many hours of work that the collection of more blood would have suffered. Also, the number of test kits that were available to the defendant were limited. The defendant followed the Food and Drug Administration recommendations that all donated blood should be tested as soon as testing supplies were commercially available. Therefore, the defendant was not negligent for failing to test the blood in inventory.; Update since the AIDS Litigation Project I:; The district court decision was reported in the AIDS Litigation Project I. Since that time, the appellate court affirmed the district court's ruling for the defendant.

[8]. Ray v. Cutter Laboratory, No. 88-693-CIV-T-17A, U.S. Dist. Ct., M. Dist. Fla., AIDS Litigation Reporter 5/11/90.: FACTS: The parents of three HIV-infected hemophiliac sons sued the manufacturer of a blood clotting factor, with which they were treated, for negligent manufacture, failure to warn and strict liability.; A federal magistrate has denied a protective order for an accidentally disclosed internal memorandum of Cutter Laboratory that suggested in 1982 that users of the products Factor VII and XI should be warned of the risk of AIDS associated with the products.; The memo had accidentally been released to the plaintiff's attorneys during the litigation of a similar HIV-transmission case. Because nothing could be done to restore the confidentiality of this internal memo between Cutter's in-house attorney and five Cutter employees, the disclosure of the memo must be considered a waiver of the attorney-client privilege. This disclosure could alter the outcome of future HIV liability litigation.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I when the complaint was filed. Since that time an internal memo of the defendant's has become a public document, possibly altering the future of this and other HIV liability cases.

[9]. Smith v. Cutter Biological, No. 87-0891, U.S. Dist. Ct., Dist. Haw., AIDS Litigation Reporter 6/9/89.: FACTS: The plaintiff is a hemophiliac who alleges he contracted HIV through tainted anti-hemophiliac Factor, which he received through Tripler Army Medical Center. The plaintiff brings negligence claims against the pharmaceutical firms and the U.S. Government.; The district court judge granted summary judgment to the pharmaceutical firms and the U.S. Government. The plaintiff had failed to establish that the firms had caused his HIV infection. The plaintiff was not able to supply records of what concentrates of medication he took or when he took them. Nor did the plaintiff introduce evidence negating other possible causes of contracting the virus. Additionally, in 1984 when the plaintiff was taking the medication, there was not a medical consensus that HIV could be spread through the blood.

[10]. Kaiser v. Memorial Blood Center, 721 F. Supp. 1073 (D. Minn. 1989).: FACTS: In 1984, the plaintiff received two units of packed red blood cells following internal bleeding after tubal ligation. The blood products had been collected by the St. Paul Region of the Red Cross, stored at Memorial Blood Center of Minneapolis (Memorial), and delivered to the hospital by Memorial. In the spring of 1987, the plaintiff learned that she was HIV-positive. She claims she contracted HIV from the 1984 transfusion, and brought suit against Memorial and Red Cross in September 1988.; ISSUES: 1. Are the defendants health care providers within the meaning of the Minnesota statute providing a two year statute of limitations on medical malpractice suits?; 2. Is a valid statute of limitations defense by an employee also a defense to a claim against the employer?; 3. Should the statute of limitations be tolled in HIV-related cases so that the two year period would not begin until the plaintiff learns of the seropositivity?; HOLDING: 1. The defendants are health care providers.; 2. A valid statute of limitations defense by the employee is also a defense to a claim against the employer.; 3. The statute of limitations is not tolled in HIV cases, but begins to run at the termination of treatment.; REASONING: 1. Any negligence or omissions occurred through the acts of doctors and nurses, who are health care professionals. Although blood banks are not individuals, it is unreasonable to treat an independent blood bank differently than one associated with a hospital or to consider a blood bank as having "less health care status" than a veterinarian.; 2. The precedent in Minnesota is that a valid statute of limitations defense extends to the employer. This is appropriate here as well, because it treats the independent blood bank the same as it would one associated with a hospital.; 3. The court must use the longstanding, general rule that termination of treatment begins the statute of limitations period in malpractice cases. The courts of the State of Minnesota have not altered this rule, so the federal court cannot do so.

[11]. Coe v. California Super. Ct., No. A048198, Cal. Ct. of App., 1st App. Dist., AIDS Litigation Reporter 8/10/90.: FACTS: The California Court of Appeals, 1st District, has affirmed a state Superior Court blood bank liability decision that blood banks are considered "health dispensaries". The lower court's decision had capped damages awarded against blood banks under the provisions of the state's Medical Insurance Compensation Reform Act (MICRA). MICRA would cap the awards in all suits against blood banks at $250,000; this would prevent nearly all parties from bringing costly AIDS-related blood suits.; STATUS: The California Supreme Court has refused to review the lower court's decision.

[12]. Cole v. Irwin Memorial Blood Bank, No. 901542, San Francisco Cty. Super. Ct., AIDS Litigation Reporter 7/13/90.: FACTS: The plaintiff and her husband brought suit against the blood bank for negligently supplying HIV-positive blood to the plaintiff. In 1983 Lawana's hand was caught in a machine as she worked at a winery. One finger was amputated and two were crushed. The transfusions she received of Irwin-supplied blood infected her with HIV.; The judge ordered the jury to return a verdict in favor of the defendant, rejecting the plaintiffs' negligence claims.

[13]. O'Rourke v. Irwin Memorial Blood Bank, No. 887431, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 7/28/89.: FACTS: The parents of Brendan O'Rourke brought a negligence suit against the defendant for infusing the boy with HIV-infected blood. The plaintiffs alleged that the blood bank failed to screen its donor and the hospital was negligent in ensuring the quality of blood that was given to Brendan.; The jury returned a verdict in favor of the defendants, denying the plaintiffs' request for more than four million dollars in damages.

[14]. Dale v. Irwin Memorial Blood Bank, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 5/12/89.: FACTS: The jury granted judgment to the defendant in this case, in which the plaintiff alleges she contracted HIV from a blood transfusion supplied by the defendant. In an eleven to one decision, the jury determined that the defendant was not negligent in supplying the blood that was used in the plaintiff's transfusion.; Update since the AIDS Litigation Project I:; The judge's decision limiting the amount the plaintiff could recover was reported in the AIDS Litigation Project I. Since that time, the jury has absolved the defendant of negligence.

[15]. Quintana v. United Blood Servs., 1991 WL 3771 (Colo. App.) (Jan. 17, 1991).: FACTS: The plaintiffs appeal the judgement entered on a jury verdict. The plaintiff received a transfusion of several units of blood and plasma which were supplied by the defendant. She was later diagnosed with AIDS. The defendant was notified that one of its units of blood may have been the source of infection. Subsequent testing revealed that one of the plaintiff's donors tested positive for the AIDS antibody. The plaintiffs brought this action alleging negligence in failing to implement testing procedures that would have indicated the presence of HIV in the donated blood. At the time the infected blood was donated, the causative agent of AIDS was not known; nonetheless, the plaintiffs contend questioning with regards to sexual preference and implementation of surrogate testing would have been reasonably prudent.; ISSUES: 1. Did the trial court err in applying the professional medical standard of care, thereby precluding the plaintiffs from presenting evidence which might tend to show that the customs and practices in the defendant's industry might not be reasonable and prudent?; 2. Did the court err by instructing the jury that defendants' compliance with regulations, customs, and practice established, as a matter of law, the absence of negligence?; HOLDING: 1. The trial court erred in applying the professional standard of care.; 2. The trial court erred in its jury instruction.; REASONING: Ordinary principles of negligence should govern this case. Neither the case law cited by the defendant nor facts identifying the individual medical professionals and medically trained personnel involved in the blood banking industry persuaded the court that blood banking is the practice of a profession requiring the application of a professional standard of care. The defendant's conduct should have been measured against what a reasonable and prudent blood bank would or should have done under the same or similar circumstances.

[16]. Miles Laboratories v. Doe, 315 Md. 704, 556 A.2d 1107 (1989).: FACTS: This is a consolidation of two cases concerning the liability of blood suppliers to a blood recipient who has contracted HIV. The federal district court in Maryland has certified several questions to the Court of Appeals of Maryland for decision, so that the district court might properly rule in the cases.; The plaintiff in the first case alleges she contracted HIV and developed ARC from Konyne, a blood clotting product manufactured by Miles. She was given Konyne in the hospital during post-natal uncontrollable bleeding. Konyne is made from pooled blood donations.; The second case is a suit against the American Red Cross by the mother of a minor child. The minor allegedly contracted HIV and developed ARC from a transfusion of packed red blood cells, supplied to the hospital by the Red Cross.; ISSUES: 1. Does the 1986 Maryland blood shield statute prohibit strict liability for a blood supplier where the recipient contracted HIV prior to 1986?; 2. Does the shield statute which was in effect prior to 1986 apply to HIV infection, to prevent liability for a blood supplier?; 3.Does Maryland law, other than the shield statute, prevent strict product liability for the supplier of HIV-contaminated blood products?; 4. Is a product liability or negligence claim against a blood supplier governed by the Maryland Health Care Malpractice Claims Act?; HOLDING: 1. The 1986 blood shield statute does not prohibit strict liability for a blood supplier where the recipient contracted HIV prior to 1986.; 2. The shield statute which was in effect prior to 1986 does not apply to HIV infection.; 3. Maryland law, other than the shield statute, prevents strict product liability for the supplier of HIV-contaminated blood products.; 4. A product liability or negligence claim against a blood supplier is not governed by the Maryland Health Care Malpractice Claims Act.; REASONING: 1. The Maryland blood shield statute, before its 1986 amendment, specifically stated that a blood or blood product supplier is not liable for the contraction of serum Hepatitis. In 1986, the amendment removed the reference to any specific virus or contaminant, thus including HIV and all other transfusion- associated diseases within its shield. The issue, then, is whether he amendment should be applied retroactively to prevent the plaintiffs from collecting damages for contraction of HIV prior to 1986.; The general rule in Maryland and most jurisdictions is that an amendment is not retroactive unless the legislature expressly makes it so. Here, the court found no indication that the amendment should be retroactive. Therefore, this amended statute will not protect the blood suppliers.; 2. The next question is whether the statute, as it read at the time of the plaintiffs' injuries, protects the blood suppliers. Based on legislative history and the clear language of the statute, the court held that the statute applied only to serum Hepatitis prior to 1986. Thus, this statute will not protect the blood supplier.; 3. Maryland common law and tort principles generally would not extend strict product liability to blood suppliers. Strict liability requires proof only that the product was defective and was unreasonably dangerous. There is no need to prove negligence or wrongdoing on the part of the manufacturer.; The court discussed at length the decisions of other jurisdictions as to whether blood was a product or a service. Most consider it a service, and therefore exempt from strict liability. This court, however, did not make a definitive finding. It based its holding on the finding that blood and blood products are "unavoidably unsafe" and so this vial or unit in question could not have been "unreasonably dangerous"--it was merely reasonably dangerous.; The court reviewed and agreed with the public policy arguments of other jurisdictions, which require protection from liability for blood suppliers in order to ensure a safe and steady supply of blood for society. The usefulness and "compelling necessity" of blood and blood products outweighs the risks in each blood transfusion. Further, it is unfair to hold the suppliers liable for a contamination which was, at the time, undetectable.; 4. The Maryland Health Care Malpractice Claims Act provides that all claims in excess of a specific dollar amount against health care providers for a medical injury require arbitration before filing suit in court. The court held, based on the definitions provided by the legislature within the Act, that the Red Cross is not a health care provider and HIV infection is not a medical injury. Thus, the plaintiff may proceed directly to court.; STATUS: These cases will now complete their trials at the federal district court level.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I as Doe v. Miles Laboratories and Cutter Laboratories. The federal court determined that the blood shield statutes did not prevent the lawsuits. This court affirmed, but held that other Maryland law did prevent the strict liability claims.

[17]. Snyder v. Mekhjian, 244 N.J. Super. 281, 582 A.2d 307 (1990).: FACTS: Plaintiff Snyder underwent elective coronary artery by-pass surgery. During this procedure, the plaintiff was infused with a unit of platelets which had been supplied to the hospital by the defendant. HIV had recently been identified as a cause of AIDS and prior to the surgery tests were available for blood screening. The "look back" program revealed that the unit infused into the plaintiff came from an HIV-positive donor. The plaintiff tested positive for HIV. The plaintiff asserted strict liability and negligence claims against all defendants. He did not seek redress from the donor but rather from those whose responsibility it was to stand protectively between them.; ISSUE: For purposes of product liability law, can a hospital be held strictly liable for a defective product supplied to it by another?; HOLDING: The hospital cannot be liable.

[18]. Crandall v. Southwest Fla. Blood Bank, 1991 WL 6315 (Fla. App. 2 Dist.) (Jan. 25, 1991).: FACTS: The plaintiff's husband received during surgery ten units of blood obtained from the Blood Bank. He died from Pneumocystis carinii pneumonia related to HIV infection. The autopsy report stated that the most probable means by which the patient was infected with HIV was blood products received during surgery. The plaintiff sought recovery on the theories of breach of implied warranty of merchantability, breach of implied warranty of fitness, and negligence, alleging that the educational and donor questionnaire forms, given to donors by the Blood Bank, fail to seek information of recent illnesses and symptoms consistent with the presence of HIV.; ISSUE: Were the questionnaire forms negligently deficient?; HOLDING: A material issue of fact remains for trial. Summary judgement is not appropriate.; REASONING: Based upon the contrary expert opinions regarding the adequacy of the blood bank's educational and donor questionnaire forms, the court could not conclude that a summary judgement in favor of the blood bank should be upheld.; STATUS: The case will proceed to trial.

[19]. Doe v. University Hosp., 561 N.Y.S.2d 326 (1990).: FACTS: The plaintiff received a blood transfusion during open heart surgery; he subsequently tested positive for HIV. He alleges that the contracted the virus from a contaminated blood transfusion, and that the defendants were negligent in the collection and distribution of such blood.; ISSUE: Is the plaintiff precluded from suing the hospital for negligence by the fact that the transfusions were given prior to development of screening tests for HIV, if the risk of HIV infection was known at time of transfusion and the hospital did not use any screening procedures or safeguards?; HOLDING: The plaintiff is not precluded from suing the hospital.; REASONING: The culpability of blood suppliers for failure to follow recomm- ended procedures and safeguards during the period prior to the development of a blood screening test is an issue which has yet to be resolved. The fact that a screening test for HIV was not available does not foreclose the plaintiff's negligence claims. At least, plaintiff is entitled to discovery to ascertain what screening procedures and safeguards, if any, were in place.

[20]. Clark v. United Blood Servs., No. CV-88-6981, Nev. 2d Jud. Dist. Ct., AIDS Litigation Reporter 5/25/90.: FACTS: The plaintiff contracted HIV from a transfusion he received during treatment for a gunshot wound in 1984. The jury awarded him $970,000 for past and future costs.; During the trial, the donor of the infected blood testified via anonymous telephone deposition. The donor said that he had attempted to donate blood to United Blood Service six times. The first three times his donations were disposed of because he had tested positive for syphilis and had received a hepatitis vaccine. The final three donations were accepted despite his history of multiple blood transfusions.

[21]. Jeanne v. Hawkes Hosp., No. 87-CV-03-1669, Ohio Common Pleas Ct., Franklin Cty., AIDS Litigation Reporter 3/23/90.: FACTS: A jury has awarded the plaintiff twelve million dollars in an HIV-contaminated blood transfusion suit.; The plaintiff was scheduled to have breast reduction surgery. The plaintiff and her mother had requested that the mother make a directed donation for the plaintiff's future use. Although they had the same blood type, the surgeon and the Red Cross denied this request.; The infected unit of blood that was given to the plaintiff had been donated to the Red Cross the same day they received HIV testing kits. It remained untested, was sent to a hospital, and returned later to the Red Cross. The Red Cross sent the unit still untested to Mt. Carmel where it was given to the plaintiff.

[22]. Royer v. Miles Laboratories, No. A8711-06948, Or. Cir. Ct., Multnomah Cty., AIDS Litigation Reporter 6/9/89.: FACTS: The plaintiff is a hemophiliac who has contracted both hepatitis and HIV from Koate, an anticoagulant medication manufactured by the defendant. The plaintiff alleged that the defendant was negligent in screening the blood plasma used to manufacture the product, and failing to heat pasteurize the product.; The defendant claimed that stored samples of the plaintiff's blood taken in 1982, before blood was screened or tested for HIV, had tested positive for HIV.; The Oregon Circuit Court jury found that the defendant was not negligent and had no duty prior to 1982 to pasteurize the product to eliminate HIV.

[23]. Gibson v. Methodist Hosp., 1991 WL 11344 (Tex. App.-Hous. (1 Dist.) (Jan, 31, 1991).: FACTS: The plaintiff underwent surgery for colon cancer in 1983 at the Methodist Hospital. Following surgery, the plaintiff's personal physician ordered two units of blood, which had been collected by Gulf Coast and supplied to the Methodist Hospital. In 1987, the plaintiff died of AIDS related complications. The plaintiff sued the Methodist Hospital alleging negligence for improperly transfusing AIDS contaminated blood to the decedent.; ISSUE: Did the defendants show, as a matter of law, that no genuine issue of fact existed with respect to the plaintiff's claim of negligence based on the use of contaminated blood that had not be subject to surrogate testing?; HOLDING: A genuine issue of fact remains for determination at trial.; REASONING: Although the witness' affidavit does not positively show that surrogate testing could have been performed on packed red cell blood units after the donation of the blood and before the transfusion, the defendants' summary judgement proof does not established that such testing could not have been done at that time.; STATUS: The case will proceed to trial.

[24]. Jackson v. Tarrant Cty. Hosp. Dist., No. 48-95022-86, Tex. 48th Jud. Dist. Ct., AIDS Litigation Reporter 8/10/90.: FACTS: The plaintiff is the mother of a child who contracted HIV through blood transfusions administered shortly after her birth in 1983. The child has since died. Belinda Jackson claimed that the hospital negligently failed to properly screen and test the donated blood.; ISSUES: 1. Was the hospital negligent for improper testing of donated blood?; 2. Was the hospital negligent for improper screening of blood donors?; HOLDING: 1. The hospital was not negligent for improper testing of donated blood.; 2. The hospital was negligent for improper screening of blood donors.; REASONING: 1. The defendant followed the standard of care as it existed in 1983 in the medical community for the testing of blood.; 2. The standard of care in 1983 as far as screening donors was to eliminate intravenous drug users. This had long been a policy of blood banks. The defendant hospital did not follow this standard. The donor of the HIV-infected blood that Jackson's child received was an intravenous drug user. In testimony he said he was not asked whether he used drugs. He also stated that he would have answered truthfully had he been asked. Thus, the defendant was negligent in failing to prevent this donor from donating blood. The plaintiff was awarded $121,030.

[25]. Longoria v. McAllen Methodist Hosp., 771 S.W.2d 663 (Tex. Ct. App. 1989).: FACTS: The plaintiffs' daughter died of AIDS at age four. They allege that she contracted HIV and cytomegalovirus (CMV) from a blood transfusion shortly after her birth. The plaintiffs sued the hospital and the blood supplier for negligence. The trial court found that, at the time of the transfusion in 1982, it was not definitively known that HIV is blood-borne, so the court held that there can be no negligence and granted summary judgment to the defendants. The plaintiffs now appeal.; ISSUE: Is a summary judgment dismissing the case proper where the defendants could not have prevented the transfusion, because there was no knowledge of, or test for, HIV?; HOLDING: Summary judgment is not proper because the plaintiff may rely on other evidence to prove negligence.; REASONING: The plaintiffs introduced evidence that there was available in 1982 a test for CMV. There was testimony that failure to discover CMV in the blood, and to dispose of the blood, was negligent. Further testimony indicated that homosexuals, bisexuals, and intravenous drug users are at increased risk for CMV and hepatitis. By eliminating from the blood bank the blood of these individuals, there is "a reasonable degree of epidemiological probability" that HIV would also be eliminated. The plaintiffs may be able to prove negligence on this theory to a jury's satisfaction, so the case was improperly dismissed.

[26]. Howell v. Spokane & Inland Empire Blood Bank, 785 P.2d 815 (Wash. 1990).: FACTS: The plaintiff, Howell, underwent elective knee surgery in October 1984, and received two units of packed red blood cells following the surgery. The blood was provided to the defendant hospital, Deaconess Medical Center, by the defendant blood bank, Spokane & Inland Empire Blood Bank (SIEBB). After the surgery, Howell resumed his practice of donating blood to the SEIBB. The SEIBB learned in November 1985 that Howell was HIV-positive, but did not inform Howell until October 1986.; Howell alleges that he contracted HIV from the blood he received following surgery. Howell filed suit against the physician, the SEIBB, and the hospital on twelve causes of action. The trial court dismissed some of the claims, and Howell appealed these dismissals before the trial.; ISSUES: 1. May Howell maintain a claim of strict liability or implied warranty against the hospital and the SEIBB?; 2. Did the hospital have a duty to obtain informed consent before giving Howell blood products?; 3. May Howell maintain a claim under the Consumer Protection Act against the hospital and the SEIBB?; 4. May Howell maintain a claim of res ipsa loquitur, or "the thing speaks for itself" against the hospital?; HOLDING: 1. The hospital and the SEIBB cannot be liable under theories of strict liability or implied warranty.; 2. The hospital did not have a duty to obtain informed consent before giving Howell blood products.; 3. The hospital and the SEIBB cannot be liable under the Consumer Protection Act.; 4. The hospital cannot be liable under a theory of res ipsa loquitur.; REASONING: 1. In examining Howell's claims under strict liability and implied warranty, the first determination must be whether the blood shield statute bars the claims. Washington has a statute which shields blood suppliers from liability for the contraction of hepatitis or malaria. In 1985, after Howell's surgery, an amendment was passed adding HIV to the shielded diseases. If this amendment was intended to apply retroactively, the SEIBB could not be liable to Howell. The purpose of the blood shield statute is to encourage a steady availability of blood products. Because there was no test for hepatitis, malaria or HIV at the time of the enactment, it would be unfair to hold blood suppliers liable for an injury they could not prevent, and it might discourage trade in blood products.; The general rule is that an amendment is not retroactive unless it is remedial or curative in nature, or there is express legislative intent to make it retroactive. This amendment is not remedial or curative. The court therefore examined the express language of the amendment and the legislative history and debate.; The court found that, although the language of the amendment, the legislative history, and the purpose for the amendment all indicate that it should be retroactive, a debate on the floor of the House of Representatives proves that the amendment was not intended to be retroactive. Therefore, the blood shield statute does not bar Howell's claim.; The next aspect to be determined is whether blood is a product or service. Implied warranty and strict liability claims may only be maintained where there is a defective product, not a service. The court reviewed decisions in Washington and the majority of states, and agreed that blood products are a service. One does not go to the hospital to purchase pills, bandages or blood, but to receive a service leading, hopefully, to recovery. The court pointed out that some states have held that in the hospital, blood is a service, but in the blood bank, it is a product. This court "decline[s] to make such a distinction." Thus, the claims of strict liability and implied warranty against both the hospital and the SEIBB are barred.; 2. The duty to obtain informed consent for medical procedures arises by statute for physicians. The hospital, comprised of staff people, had no special knowledge of Howell's circumstances or any duty to inform Howell of risks. The hospital staff merely carried out the physician's order for packed red blood cells for Howell.; The court noted that other states have similarly held that a hospital has no duty of informed consent. In this case, Howell's physician is also a defendant and this claim may be maintained against him or her.; 3. To establish a claim under the Consumer Protection Act, five requirements must be met. One of these is that there must be a causal link between the unfair business practice and the injury. Howell claimed that the SEIBB furthered its business interests by failing to inform him that his blood had tested HIV-positive. However, his seropositivity was not caused by this failure to inform. Therefore, this claim fails.; Howell also claimed that the hospital furthered its business interests by failing to obtain informed consent. However, the court has established that the hospital had no duty to obtain informed consent, so this claim also fails.; 4. Finally, Howell claimed that the doctrine of res ipsa loquitur applies to provide liability against the hospital. This doctrine requires that: the injury would not ordinarily occur in the absence of negligence, the instrument which caused the injury was in the exclusive control of the defendant, and the plaintiff did not contribute to the occurrence of the injury. The court held that the red blood cells were not in the exclusive control of the hospital. The blood had been donated, collected, and transfused by three different parties, none of whom had exclusive control. Therefore, the res ipsa loquitur claim fails.; STATUS: The remaining claims that Howell maintains against the defendants, including a claim for negligence, may now proceed to trial.

[27]. Doe v. Spokane & Inland Empire Blood Bank, 780 P.2d 853 (Wash. App. 1989).: FACTS: Doe, a hemophiliac, contracted HIV and developed AIDS through tainted blood products. Doe filed a class action suit against several plasma centers, blood processors, pharmaceutical manufacturers and distributors, pharmacies, and hospitals. He sought to represent the class including all hemophiliacs in Washington who had been similarly injured.; ISSUES: 1. Should Doe be certified to represent the class?; 2. Should Doe's lawyer face sanctions for violating the rule against filing a frivolous lawsuit?; HOLDING: 1. Doe should not be certified to represent the class.; 2. More facts are needed at the trial court level before a ruling on sanctions of the lawyer can be made.; REASONING: 1. This action cannot be certified as a class action. The first obvious fault is that Doe is not a member of the class he seeks to represent, because he contracted HIV from a frozen product and not a freeze-dried product. Additionally, each class member would require a separate trial as to each of the defendants, and the technical obstacles are "insurmountable."; 2. The frivolous filing of a lawsuit not grounded in fact mandates sanctions against the lawyer if he acted unreasonably in investigating the case. This court did not have enough facts to rule on this issue; however, it did examine the facts which were available. The court found no evidence that the lawyer acted reasonably, and sent the case back to the trial court for further proceedings, including, if necessary, sanctions.

[28]. Brown v. American Nat'l Red Cross, No. B-89-1244, U.S. Dist. Ct., Dist. Md, AIDS Litigation Reporter 10/27/89.: FACTS: The parties of this case have reached a private settlement. The plaintiff had brought suit after receiving a transfusion of HIV-positive blood that had been supplied by the defendant during an emergency procedure.; Brown had alleged that the defendant negligently screened its donors, that it had failed to warn the hospital about the dangers of untested blood, and that the defendant had failed to recall all untested blood that it had supplied once the ELISA tests were available. The blood that Brown had received had been donated one day before the ELISA tests arrived to test for the presence of HIV. The blood was not tested and had remained in stock.

[29]. Anonymous Blood Recipient v. William Beaumont Hosp., 721 F. Supp. 139 (E.D. Mich. 1989).: FACTS: The plaintiff alleges that the Red Cross negligently provided HIV-tainted blood to her during surgery in William Beaumont Hospital. She is now HIV seropositive.; STATUS: This case was appealed on a procedural point. The memorandum opinion was that the Red Cross could not remove the case from state to federal court, and the case was ordered back to state court. A trial will follow.

[30]. Collins v. American Red Cross, 724 F. Supp. 353 (E.D. Pa. 1989).: FACTS: The plaintiff's husband received an HIV-contaminated blood transfusion supplied by the defendant. The plaintiff's husband has since died. The plaintiff alleges state tort claims. The case was removed to federal district court although neither diversity of citizenship nor any substantive federal issues exist. The plaintiff has moved to remand the case back to state court.; STATUS: The district court lacks subject matter jurisdiction in this case because the "sue and be sued" language in the Red Cross Charter does not confer original federal subject matter jurisdiction. Additionally, the Red Cross removal petition was procedurally deficient. Therefore, this case is remanded to the state court for decision.

[31]. Gonzalez v. Puerto Rico, 726 F. Supp. 10 (D.P.R. 1989).: FACTS: The plaintiff alleges his daughter contracted HIV from blood negligently supplied by the Red Cross to the hospital in which the daughter received a transfusion.; STATUS: This case was appealed on a procedural point. The court held that the Red Cross improperly removed the case from state to federal court and the case was ordered back to state court. Presumably, a trial will occur.; Update since the AIDS Litigation Project I:; Notice of the complaint as filed was reported in the AIDS Litigation Project I. Since that time, the case has been remanded from federal district court to state court and awaits trial.

[32]. Hoemke v. New York Blood Ctr., No. 88 Civ. 9029 (RO), U.S. Dist. Ct., S. Dist. N.Y., 1989 U.S. Dist. LEXIS 14099, November 22, 1989.: FACTS: The plaintiff alleged that she contracted HIV from blood transfusions she received in 1981 during kidney stone surgery. She charges the blood supplier and the hospital with negligence in screening and testing the blood donations. She also alleges the hospital was negligent in giving her a transfusion in the first place, that they were negligent for failure to warn of the dangers of transfusions, and that they were negligent for not offering an alternative to an anonymous donation.; ISSUES: 1. Was the blood bank negligent in its screening and testing of blood donations?; 2. Was the hospital negligent for transfusing the plaintiff with blood, for not warning of the dangers of transfusions, and for not offering an alternative to an anonymous donation?; HOLDING: 1. The blood bank was not negligent in its screening and testing of blood donations.; 2. The hospital may have been negligent for transfusing the plaintiff with blood, for not warning of the dangers of transfusions, and for not offering an alternative to an anonymous donation.; REASONING: 1. The blood bank was not negligent in its procedures because it followed every standard of care applicable in 1981. Therefore, the defendant blood bank's motion for summary judgment was granted.; 2. Because the issue of whether the hospital was negligent remains, the hospital's motion for summary judgment was not granted. These issues must be determined at trial.; STATUS: The claims against the hospital remained to be determined at trial.

[33]. In Re Complex Blood Bank Litig., No. 908843, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 3/9/90.: FACTS: A judge has ruled that the plaintiffs of a consolidated suit involving complex blood bank litigation may not supplement their cases by detailing the screening methods used by the defendant after the plaintiffs contracted HIV from blood transfusions. California's Evidence Code forbids the introduction of measures taken after an event that might have diminished the likelihood of that event's occurrence.; The judge ruled earlier in the week to deny the defendant's request to bar the claims of negligent infliction of emotional distress by all relatives and friends of people who have contracted HIV through blood transfusions.; STATUS: This litigation is pending.

[34]. Crawford v. United Blood Servs., No. 98164, Cal. Super. Ct., Ventura Cty., AIDS Litigation Reporter 8/11/89.: FACTS: The plaintiffs, Mrs. and Mr. Crawford, have filed a negligence suit against the defendant. Sabrina Crawford allegedly contracted AIDS in 1984 when she was given a transfusion of blood, supplied by the defendant, for menstrual hemorrhaging.; ISSUES: 1. Should the defendant be considered a health care provider, thus entitling it to the protection of the Medical Injury Cost Reduction Act, which limits any award for non-economic damages to $250,000?; 2. Should the plaintiffs' consortium claim be dismissed?; HOLDING: 1. The defendant should be considered a health care provider entitling it to MICRA protection.; 2. The plaintiffs' consortium claim should be dismissed.; REASONING: 1. The defendant employs registered nurses to carry out the blood donation procedures. The defendant is also licensed to produce biologics and is a clinical laboratory. Therefore, the defendant provides services that are medical in nature and comes under the definition of health care provider under the MICRA.; 2. The plaintiffs cannot maintain their consortium claim because the two were not married when Sabrina Crawford contracted HIV. Additionally, the couple were both aware of her HIV status when they married.; STATUS: The remaining issues as to the defendant's negligence in screening the donors and for failing to warn Sabrina Crawford of the dangers of transfusions remain for resolution at trial.

[35]. Murphy v. Community Hosp. of the Monterey Peninsula, Cal. Super. Ct., Monterey Cty., AIDS Litigation Reporter 6/9/89.: FACTS: The plaintiff alleged that the hospital negligently accepted donations over a two-year period from a known drug addict whose arms were clearly marked with needle punctures. She sought $1.5 million in damages.; Arbitrators for the American Arbitration Association have rejected the plaintiff's claim for damages. The arbitrators ruled that the defendant would pay the arbitration costs.; On April 27, 1989, the plaintiff died while the case was still in arbitration. Her family will revise the suit against the hospital by adding a wrongful death claim.; Update since the AIDS Litigation Project I:; This case had been moved from arbitration to trial when reported in the AIDS Litigation Project I. Since that time the California Court of Appeals reversed that order and sent the case back to arbitration where the plaintiff's claims were denied.

[36]. Wadley Research v. Morris, 776 S.W.2d 271 (Tex. Ct. App. 1989).: FACTS: Kuehn received a blood transfusion in 1985 from blood collected by Wadley Research. Kuehn subsequently developed and died from AIDS. His wife also has developed AIDS. The Kuehns allege that they contracted HIV from the transfusion, and that Wadley had the knowledge and technology to screen blood for HIV but failed to do so.; STATUS: The case on the merits is still pending. The decision on this occasion concerned a conflict of interest of the attorney representing the plaintiffs. It is, therefore, outside the scope of the AIDS Litigation Project.

[37]. Ray v. American Red Cross, The Washington Times 7/17/90.: FACTS: Roland Ray received a blood transfusion in 1984 during treatment of a gunshot wound. The blood, which was supplied by the American Red Cross, was HIV-infected. Ray's wife and son have, as yet, tested negative for HIV.; Ray and his wife Janet have filed a class action suit on behalf of 228 Washington residents who may have contracted HIV through Red Cross-supplied blood transfusions. The plaintiffs claim that the Red Cross was negligent in screening and testing for blood donations. The plaintiffs seek unspecified damages.; The suit was filed following a report made by the Food and Drug Administration that criticized the Red Cross operating and reporting methods in the Washington area.

[38]. Rogers v. Miles Laboratories, No. C88-1441D, U.S. Dist. Ct.,W. Dist. Wash., 1990 U.S. Dist. LEXIS 1680, January 4, 1990.: FACTS: The plaintiffs, a hemophiliac child and his mother, have brought strict liability claims against the defendant manufacturer of a drug with a blood component, Factor IX. The plaintiffs allege that the child contracted HIV from Factor IX.; ISSUES: 1. Does Washington's Product Liability Act (WPLA) immunize human blood and its components from any action for strict liability?; 2. Does the blood immunity statute immunize blood providers from strict product liability?; 3. Should the Washington Supreme Court adopt an exemption for blood suppliers from strict liability for unavoidably unsafe products?; 4. Should the defendant's motion for summary judgment be granted, dismissing the plaintiffs' strict liability and negligence complaints?; HOLDING: 1. WPLA does not immunize human blood and its components from any action for strict liability.; 2. The blood immunity statute immunizes blood providers from strict product liability.; 3. The Washington Supreme Court would probably adopt a strict liability exemption for blood suppliers. Thus, the district court will do so.; 4. The defendant's motion for summary judgment is granted dismissing the plaintiffs' strict liability claims. The plaintiffs' claims brought under theories of negligence remain.; REASONING: 1. The WPLA explicitly states that blood and its components are excluded from that Act's immunity.; 2. Although the blood immunity statute does not immunize compensated blood donations completely, it does immunize blood providers from the effects of common law strict product liability.; 3. Public policy supports exemption of blood suppliers from strict liability. The medical and social value of producing and supplying medications of unquestioned benefit to hemophiliacs outweighs common law strict product liability which favors the innocent consumer.

[39]. Robinson v. Richmond Metro. Blood Serv., Law No. LR 3763-2, Richmond Cir. Ct., filed November, 1989. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va. (Settlement).: FACTS: This is a suit regarding blood as a defective product. A ten year old boy, transfused in 1986 with blood tainted with HIV, subsequently died of AIDS.; STATUS: Case settled.

[40]. Roe v. Richmond Metropolitan Blood Service, Inc., Law No. LS -420, City of Richmond Circuit Court, filed February 5, 1990. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va. (Motion to dismiss).: FACTS: This is a suit regarding blood as a defective product. A woman was transfused in 1986 with tainted blood, who then developed AIDS.; STATUS: Motion to dismiss on statute of limitations grounds granted.

B. Discovery of the Blood Donor's Identity

[41]. Bradway v. American Nat'l Red Cross, 132 F.R.D. 78 (N.D. Ga. 1990).: FACTS: The recipient of contaminated blood, who contracted AIDS, brought an action against the blood supplier. The complaint alleged that the defendant knew or should have known that the blood was contaminated, that it was negligent in its blood collection practice and that this negligence was the proximate cause of the plaintiff's illness. The plaintiff sought to compel discovery of Red Cross documents concerning its policies and procedures for the collecting, processing and distribution of blood, as well as donor cards, in order to discover donor identities.; ISSUE: May the plaintiff have access to the confidential information required?; HOLDING: In balancing the plaintiff's interest in disclosure against defendant's desire to maintain confidentiality, can a court compel discovery of documents concerning policies and procedures but deny motion to compel disclosure of donor identities?; REASONING: The defendant failed to show that it would be unduly burdened in providing opposing counsel with the documents concerning policies and procedures; but, defendant's concern with protecting the adequacy and safety of the blood supply by insuring donor confidentiality outweighed plaintiff's need for the information on donor identities.

[42]. Coleman v. American Red Cross, No. 89-CV-71671-DT, U.S. Dist. Ct., E. Dist. Mich., 1990 U.S. Dist. LEXIS 3714, April 3, 1990.: FACTS: The plaintiff, Cheryl Coleman, alleges she became infected with HIV from a blood transfusion received from the defendant's volunteer blood supply program. At the time of the donation, there was no test that could detect HIV.; The defendant became aware of a possible problem when the donor whose blood was used in the plaintiff's transfusion tested positive for HIV in a subsequent donation. The defendant initiated its "look back" procedure, contacting the donor for additional information and alerting any recipients of the infected blood. After notification, Coleman tested positive for HIV.; The plaintiff requested that the donor be identified so that the donor could be questioned as to the defendant's negligence. The plaintiff argues that though disclosure might reduce the number of volunteer blood donors, the blood supply would be safer because persons high at risk for AIDS would be discouraged from donating blood due to the possibility of disclosure.; The defendant contends that the plaintiff has no need to know the donor's identity because all the testing and screening information that is needed will be provided with the donor's identifying information removed. Furthermore, the disclosure of blood donors' identities could jeopardize the nation's volunteer blood supply. Donors fearful of disclosure would be discouraged from volunteering, reducing the quantity of the blood supply. Donors who continued to donate would be less willing to provide accurate health information if they feared disclosure. The defendant's "look back" procedure would be less effective as well without the donor's cooperation.; ISSUES: 1. Does the plaintiff's need for disclosure outweigh the potential danger to the volunteer blood supply system?; 2. Does the plaintiff's need for disclosure outweigh the potential impact on the donor?; 3. Does disclosure violate any constitutional rights of the donor?; HOLDING: 1. The potential danger to the adequacy and safety of the volunteer blood supply system outweighs the plaintiff's discovery needs.; 2. No decision was made as to whether the plaintiff's need for disclosure outweighs the potential impact on the donor.; 3. No decision was made as to whether disclosure violates any constitutional rights of the donor.; REASONING: 1. The Federal Rules of Civil Procedure limit discovery where there is good cause to protect a person or parties from annoyance, embarrassment, oppression or undue burden or expense. Disclosure would have a serious impact on the volunteer blood supply by reducing the number of donations and jeopardizing the quality of the remaining blood donations. Fewer people would donate and those who did would be less willing to provide accurate information. The plaintiff has failed to show a compelling need or mitigating circumstances in favor of disclosure. Therefore, the plaintiff's needs are outweighed by the important societal needs for a safe and adequate blood supply.; 2. The court similarly did not address the potential impact on the donor if disclosure was allowed.; 3. Because the court determined that the potential danger to the volunteer blood supply system outweighs the plaintiff's discovery needs, it did not address the issue of the donor's constitutional rights.

[43]. Boutte v. Blood Systems, Inc., 127 F.R.D. 122 (W.D. La. 1989).: FACTS: The defendant, Blood Systems, Inc., received a blood donation from an individual who tested negative for HIV. The plaintiff, Otto Boutte, underwent surgery and received a unit of this donor's blood. The donor later returned to Blood Systems and his blood tested positive for HIV. Blood Systems informed the prior recipients of this donor's HIV status. Boutte subsequently tested positive for HIV.; The plaintiff filed suit against Blood Systems alleging that Blood Systems was negligent in its procedures for self-deferral and for screening blood donations. The plaintiff requested the identity of the donor to assist in proving the defendant's negligence. The defendant provided, with all identifying information deleted, copies of the donor's interview questionnaire and the results of the tests performed on the unit of blood received by Boutte.; There are only two people who can identify the circumstances of the infected blood's donation: the technician of Blood Systems and the donor. The technician, George Paul Lombardo, testified during his deposition that he followed Blood System's general procedure at the time of the donation in question, which accords with federal regulations. He did not remember the particular donor but asserted that he followed the identical procedure with every donor.; The defendant argues that Lombardo's testimony together with the donor's questionnaire are enough evidence for the plaintiff to pursue his claim. The defendant also argues that to disclose the donor's identity would violate the donor's constitutional right to privacy. Additionally, Blood Systems asserts that a policy of disclosure would adversely effect blood donations by discouraging donors from giving blood.; The plaintiff argues that he is entitled to question the donor further to determine whether Lombardo followed the established guidelines in the subject donor's interview. Only the donor has the knowledge of the donor's own understanding of the AIDS-related questions.; ISSUES: 1. Is the identifying information sought by the plaintiff relevant under the Federal Rules of Civil Procedure?; 2. Does disclosure violate the donor's constitutional right to privacy?; 3. Does the plaintiff's right to disclosure outweigh the donor's right to privacy?; 4. Does the plaintiff's right to disclosure outweigh society's interest in the volunteer blood supply?; 5. Was Blood Systems negligent in screening and testing the subject blood donor?; HOLDING: 1. The information from the donor sought by the plaintiff is relevant under the Federal Rules of Civil Procedure. Therefore, discovery by deposition from the donor will be allowed. However, a protective order to preserve the identity of the donor was entered. The donor need not give any identifying information and arrangements can be made to disguise or conceal the donor's face from the court reporter or any other person present.; 2. No decision was made regarding the issue of whether disclosure would violate the donor's constitutional right to privacy.; 3. The plaintiff's right to pursue discovery in order to prosecute their case outweighs the donor's privacy rights.; 4. The plaintiff's right to question the donor is compatible with society's interest in the volunteer blood supply.; 5. No decision was made as to Blood System's negligence in screening and testing the donor.; REASONING: 1. Questioning the donor is relevant under the Federal Rules of Civil Procedure because only the donor has access to the knowledge that the plaintiff wants to discover. The technician has no recollection of the interview with the subject donor; the donor may possess information relevant to whether the established guidelines were followed in the interview. Additionally, the donor is uniquely situated as being the only one with knowledge of his understanding of the AIDS related questions that were asked of him. Therefore, information that the donor could provide is essential to the plaintiff in pursuing his case.; 2. Because the interests of both parties are protected by the Federal Rules of Civil Procedure, a constitutional analysis need not be applied regarding the donor's right to privacy.; 3. In order to prove his claim, the plaintiff requires the donor's testimony as to whether the screening procedures were followed. The privacy of the donor will be protected somewhat by restricted access to the donor. The donor's anonymity will also be safeguarded. Therefore, the plaintiff's right to pursue this claim outweighs the donor's right to privacy.; 4. The plaintiff's right to disclosure of information from the donor is compatible with society's interest in maintaining an adequate volunteer blood supply. The plaintiff's right to the information will set a precedent that will help to prove negligence in cases such as this. This will in turn force blood collectors and suppliers to use the highest standards possible. Discovery of information from the donor therefore works to benefit society in the long run by improving the quality of the blood supply.; 5. The decision as to Blood System's negligence was not addressed.

[44]. Doe v. American Red Cross Blood Servs., 125 F.R.D. 646 (D.S.C. 1989).: FACTS: The plaintiff Doe received blood contaminated with HIV, which had been collected by the Red Cross. Doe has developed ARC. She has begun a negligence action, and her husband has begun an action for the loss of consortium, against the Red Cross.; The donor of the tainted blood completed a medical history questionnaire and was interviewed by two nurses before donating blood. The main issue in the negligence action will be whether the Red Cross should have permanently rejected the donor's blood due to his responses during these interviews. There is some confusion as to whether the donor had a history of viral hepatitis. Therefore, the plaintiffs wish the Red Cross to identify the donor, or to question the donor but retain his anonymity.; ISSUES: 1. Would the donor's constitutional right to privacy be violated by ordering the donor's identity or testimony to be heard?; 2. Is the donor's identity or testimony privileged and therefore not available to the plaintiffs?; 3. Would the disclosure of the donor's identity or testimony be unduly annoying, embarrassing, burdensome and oppressive and therefore should be denied under the Federal Rules of Civil Procedure?; HOLDING: 1. The constitutional issues are not decided because the donor's interest in privacy can be adequately protected by the Federal Rules of Civil Procedure.; 2. The identity of the donor is not privileged for the purposes of a negligence action against the blood supplier.; 3. The Federal Rules of Civil Procedure require the request for the disclosure of the identity or testimony to be denied because it would be unduly burdensome for the donor, the blood bank, and the safety of the society's blood supply.; REASONING: 1. The court has a duty to avoid deciding constitutional issues where possible.; 2. Statutes which make information privileged apply only to the Department of Health and Environmental Control and to physicians, but not to courts, nurses or blood banks.; 3. The determination of whether information falls within Federal Rules of Civil Procedure is left to the discretion of the court. The court must balance the interests of the donor in maintaining privacy plus the interests of society in a safe and confidential blood supply, against the plaintiff's interest in receiving as fair a trial as possible. While a few courts have ordered disclosure of the donor's identity, those were cases in which the plaintiff's interests were much greater than they are here. When balanced, the interests of the donor and society far outweigh those of the plaintiff; therefore, the Federal Rules prevent disclosure of the donor's identity and his forced testimony.

[45]. Stenger v. Lehigh Valley Hosp. Ctr, 386 Pa. Super. 574, 563 A.2d 531 (1990).: FACTS: The plaintiff received several transfusions during treatment for an automobile accident. She alleges that after her release from the hospital, the Blood Center informed the hospital that she was transfused with blood from a donor who now tests HIV-positive. Two years after the transfusions, the plaintiff, her husband, and their six-year old son all tested HIV-positive. The defendants, the hospital and the Blood Center, admit that a unit of blood from this donor was given to the plaintiff, but deny that she and her family were infected with HIV through the transfusion. Neither party attempts to explain the mode of transmission to the six-year old.; ISSUES: 1. May the plaintiff discover the identity of the blood donor?; 2. May the plaintiff discover the identities of other recipients of blood from that donor?; 3. May the plaintiff discover the delivery dates of blood the hospital received from that donor, and the HIV status of other patients who received this blood?; HOLDING: 1. The plaintiff may question the blood donor if his identity remains anonymous.; 2.The plaintiff may not discover the identities of other recipients of blood from that donor.; 3. The plaintiff may discover the delivery dates and HIV status of other patients pertaining to blood from that donor.; REASONING: 1. At the time of the plaintiff's transfusion, there was not yet a test for HIV; however, certain practices designed to eliminate donors who practiced high risk behaviors were in place. The plaintiff seeks to interview the donor to determine if negligence in this screening process led to her infection with HIV. The Supreme Court of Pennsylvania has held that one's privacy right must be balanced against the interests of the party seeking discovery.; Because the hospital admits that the donor later tested HIV-positive, the plaintiff's interest in the donor's identity is reduced. However, the plaintiff does have an interest in questioning the donor about the screening process. The court held that the physician-patient privilege, the constitutional right to privacy, and the public policy of maintaining a confidential blood supply were all outweighed by the plaintiff's need to interview the only person who has the information they need. However, the court ordered only a limited discovery, which must protect the donor's identity and prevent all questions not pertaining to the screening process.; 2. The plaintiff seeks to learn the identities of other patients who received blood from the same donor, to strengthen her claim that her HIV infection was caused by the transfusion. However, the interests of privacy and public policy here outweigh the mere chance that the plaintiff's claim will be easier to prove to a jury's satisfaction.; 3. Failing to learn the identities of the other recipients, the plaintiff seeks to discover the dates on which the hospital received blood from this donor, and the results of HIV tests done during a look-back procedure of the other recipients of this donor's blood. The identity of the recipients may be kept absolutely confidential, so the request may be granted. It is possible to disclose that "Donor's blood was transfused to (X) number of patients and (X) number of them later learned they had contracted AIDS."

[46]. LaBurre v. East Jefferson Gen. Hosp., No. 89-CC-1262, La. Sup. Ct., AIDS Litigation Reporter 3/9/90.: FACTS: Mercy Hospital, a defendant in this suit, had filed a motion to compel disclosure of the names of donors who provided blood to the Blood Center for Southeast Louisiana, another defendant in this suit. Both defendants had supplied blood that was used for transfusions that infected the plaintiff with hepatitis.; The Louisiana appellate court ordered that the Blood Center disclose the names of the donors to Mercy so that Mercy could defend itself in this suit. Protective orders will by issued so as to protect the privacy of the donors.; The Louisiana Supreme Court reversed the appellate court ruling. The Supreme Court held that donor cards with the names of the donors deleted is enough for the defendant Mercy Hospital to use to defend itself. The privacy interests of these donors outweigh Mercy Hospital's need to know their identifying information.; STATUS: This case is pending.

[47]. United Blood Servs. v. The Second Judicial District Court of Nev., No. 20375, Nev. Sup. Ct., Mental & Physical Disability Law Rptr. May/June 1990.: FACTS: This dispute arises out of another case in which Jeffrey Clark sued the United Blood Services (UBS) for negligent blood screening, causing him to contract HIV. The court had ordered UBS to find the donor and arrange for a telephone deposition. If UBS could not locate the donor, Clark would be entitled to the donor's identity. UBS petitioned that the trial court's order be quashed.; The state supreme court modified the trial court's order. UBS is now required to make a reasonable effort to locate the donor. If UBS cannot, then it must explain to the trial court why and how it failed. If necessary, the trial court can order another party to attempt to locate the donor. If the donor has died, Clark may receive all medical records of the donor with the identifying information deleted. If the donor still cannot be located, then Clark may not receive the donor's identity or make any further efforts at discovery.; STATUS: This case is pending.

D. Duty to Inform Recipients of Contaminated Blood

[48]. Kobey v. Alvarado Hosp., San Diego Super. Ct., AIDS Litigation Reporter 9/8/89.: FACTS: A private settlement has been reached in this suit involving HIV-infected blood received during heart surgery at Alvarado Hospital.; The plaintiff sued the hospital for its delay in advising him of the use of the tainted blood. According to the plaintiff, the hospital was advised by the supplier in February 1987 that the blood used in the October 1986 operation had been tainted. The plaintiff did not learn of his infection until six months later, when he was re-hospitalized.; Update since the AIDS Litigation Project I:; This announcement of the complaint was reported in the AIDS Litigation Project I. Since that time, the case has been settled.

E. Business Concerns

[49]. Vansant v. American Red Cross, No. 4881, Pa. Ct. of Common Pleas, Philadelphia Cty., AIDS Litigation Reporter 6/8/90.: FACTS: The plaintiff, Jean Vansant, received a transfusion in 1984 during her treatment for a nosebleed. She contracted HIV from this transfusion and has now developed AIDS-Related Complex. Jean and her husband argue that the Red Cross was negligent in screening its donors, in failing to warn of the dangers of transfusions, and in failing to offer alternatives to blood transfusions from an anonymous source.; ISSUE: Should the court grant the motion of the Red Cross to deny discovery of their internal documents which outline the organization's policies regarding blood screening and testing?; HOLDING: The Red Cross motion seeking to deny discovery of internal documents to the plaintiffs is denied.; REASONING: The Red Cross has shown no evidence that protection of these internal documents is necessary. There is no constitutional, statutory, or common law upon which to base the protection from discovery of these documents.; Furthermore, these documents which outline procedures utilized in 1984 are outdated and therefore do not reflect Red Cross procedures in use today. Because the documents are no longer applicable, they should not adversely effect the reputation of the Red Cross.; STATUS: This case is pending.

III. EPIDEMIOLOGIC SURVEILLANCE

A. Mandatory Reporting

[50]. New York State Society of Surgeons v. Axelrod, 157 A.D.2d 54, 1990 N.Y. App. Div. (1990).: FACTS: Four New York medical societies requested the Commissioner of Health to designate HIV infection as a communicable disease and a sexually transmissible disease pursuant to the Public Health Law. This would authorize isolation, quarantine, mandatory testing, or contact tracing for HIV infected individuals in appropriate cases. The medical societies admit quarantine is inappropriate, but are concerned about inadequate testing. The Commissioner refused to add HIV infection to the list of diseases. The societies then sued the Commissioner, claiming that he had exceeded his authority in refusing the request.; ISSUE: Did the Commissioner of Health exceed his authority in refusing to add HIV infection to the list of communicable and sexually transmissible diseases?; HOLDING: The Commissioner did not exceed his authority in refusing to add HIV infection to the list of diseases.; REASONING: The court is limited to the question of the exercise of the Commissioner's authority. The Commissioner's decision must stand unless the court finds it to be capricious and arbitrary, or in violation of a statute. The Public Health Law plainly indicates legislative intent to empower the Commissioner to determine which diseases should be listed, so there is no violation of a statute.; The Commissioner's decision was not arbitrary or capricious. He persuaded the court that voluntary testing is more effective than mandatory, and that voluntary testing provides all the information required by the medical societies. "HIV infection leading to AIDS is one of the few diseases which is both fatal and incurable." Discrimination is probable and should be prevented. Further, new HIV-related legislation specifically requires written, informed consent and the option of anonymity for all HIV testing. This view is also supported by the Centers for Disease Control guidelines.; The Commissioner has proven that no benefit would be had by listing HIV infection as a communicable, sexually transmissible disease. His decision was rational and not capricious.; Dissent:; One judge dissented from this opinion. While he agreed that the Commissioner has the authority to decide the issue, here the Commissioner acted arbitrarily and capriciously. The judge reviewed several statistics on projected AIDS cases, and found that the need to protect the public health "far outweigh[s] respondents' concern" that mandatory testing will reduce voluntary cooperation and threaten confidentiality.; Update:; This case was reported in the AIDS Litigation Project I. The trial court had then held that the Commissioner had not exceeded his authority and had not acted capriciously. The Court of Appeals, reported here, agreed.

B. Testing/Screening

1. Informed Consent

[51]. Doe v. Dyer-Goode, 387 Pa. Super. 151, 566 A.2d 889 (1989).: FACTS: John and Jane Doe went to the defendant, a doctor, for premarital blood tests. John Doe consented to having his blood drawn but did not consent to an HIV test. The doctor later informed him that he was HIV-positive. A subsequent test result, however, was negative.; ISSUES: 1. Is the doctor liable for invasion of privacy?; 2. Is the doctor liable for battery based on lack of informed consent?; 3. Is the doctor liable for breach of contract and breach of duty to deal in good faith?; 4 Is the doctor liable for negligence?; 5.Is the doctor liable for intentional infliction of emotional distress?; HOLDING: 1. The doctor is not liable for invasion of privacy.; 2. The doctor is not liable for battery.; 3. The doctor is not liable for breach of contract or duty.; 4. The doctor is not liable for negligence.; 5. The doctor is not liable for intentional infliction of emotional distress.; REASONING: 1. The only type of invasion of privacy which could possibly apply to these facts is the "invasion of bodily integrity." This does not apply, however, because Doe voluntarily released his blood and was not invaded.; 2. It is not certain that a needlestick is invasive enough to require informed consent. Even if it is, however, Doe was informed of the risks of blood withdrawal and did consent to the procedure. The blood obtained by the procedure "is simply a by-product" and one additional blood test performed on this blood cannot constitute a battery.; 3. Doe did not contract with the doctor to perform certain blood tests and to specifically exclude all others. There is no express or implied contract at all. Further, the duty to deal in good faith was not breached, because there is no evidence that the doctor did not "act in her patient's best interest."; 4. There is no negligence because there is no "duty to refrain from having an HIV blood test performed. . . when consent has not been obtained, nor will we impose such a duty." Neither is there any duty to provide or offer counselling when the test results are reported to the patient. "In fact, failure to promptly report this result" may itself have been negligent.; 5. There is no evidence of intentional infliction of emotional distress. The doctor's action, as a matter of law, was not "extreme and outrageous conduct."; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation I as a complaint which had been filed. Since that time, the case has been decided and appealed. Both courts held for the defendant.

[52]. Poot v. New York Life, No. 86-2-17409-5, Wash. Super. Ct., King Cty., AIDS Litigation Reporter 9/8/89.: FACTS: A suit in which a life insurance company allegedly tested the plaintiff Poot's blood for HIV without authorization has been privately settled.; Poot alleges that when he applied for life insurance coverage from New York Life, he was expressly told that his blood would not be tested for HIV. Poot was later denied coverage because the blood tests that New York Life conducted were reactive to HIV.

IV. STATE RESTRICTIONS OF PERSONS: CRIMINAL LAW

A. Crime of Risking Transmission of HIV

[53]. Doe v. Sercy, No. 3:88-1068-16, U.S. Dist. Ct., Dist. S. Car., Columbia Div. Source: LAMBDA (Petition for Writ of Habeas Corpus, May 3, 1988).: FACTS: The plaintiff was found to be mentally ill by a court, and was committed to a mental health facility for two months. The Department of Mental Health had obtained unsubstantiated information that the plaintiff was HIV-positive and was engaging in high-risk behavior. She was therefore served with an "Order of Quarantine" at the time of her release from the mental health facility. The order required that she remain confined to her home, and that only pre-approved visitors could enter.; During the plaintiff's original commitment, she had been unable to pay her bills, so her electricity had been shut off. She therefore left her home and was arrested for disobeying the quarantine order. After this arrest, she was served a second Order of Quarantine which committed her to a Department of Mental Health facility. She is now there, with no known release date. She petitions for a writ of habeas corpus, to secure her release.; ISSUE: Were the plaintiff's constitutional rights to both substantive and procedural due process violated?; STATUS: The federal court held that it should refrain from deciding this case because it more properly belongs in state court. Although the plaintiff is still in custody, the federal court dismissed the action. The plaintiff may now bring the action in a state court.

[54]. Brock v. State, 555 So.2d. 285 (Ala. Crim. App. 1989).: FACTS: Brock was a prisoner confined to the "AIDS Unit" at Limestone Correctional Facility. During a fight with a guard, and after he had been handcuffed, Brock bit the guard on the arm. Three blood tests showed the guard to be HIV-negative. Brock was charged with attempted murder, but the jury convicted him only of first degree assault. Brock appealed, alleging he had not been proven guilty even of this lesser charge. This is the first criminal prosecution for attempted transmission of HIV in Alabama.; ISSUES: 1. Can mouths and teeth constitute deadly weapons pursuant to the first degree assault statute?; 2. Can the court accept as truth that HIV can be transmitted through biting?; 3. Did the State prove that Brock intended to cause serious physical harm, through HIV transmission, to the guard?; HOLDING: 1. The State failed to prove that mouths and teeth were used as deadly weapons in this case.; 2. The court cannot accept as truth that HIV can be transmitted through biting.; 3. The State failed to prove Brock intended to transmit HIV to the guard.; REASONING: 1. While most courts hold that teeth can never be dangerous or deadly weapons, Alabama might find that they are, if they are used in a manner likely to cause death or serious injury. There was no resultant serious injury in this case, and the State failed to prove that one was likely.; 2. The court recognizes that AIDS is a serious disease, but cannot recognize that biting is a possible mode of transmission of HIV. Although it is possible, it is not an established scientific fact that biting can transmit HIV, and the State presented no evidence tending to show the probability.; 3. Brock was told he was HIV-positive and that he had been tested by "Western block" (sic). However, there was no evidence that Brock was given any instruction or education about the virus or its mode of transmission. The State, therefore, failed to prove first degree assault, but did prove the bite itself. Thus, Brock's charge was reduced to third degree assault.

[55]. District of Columbia v. Feaster, No. F3313-89, D.C. Super. Ct., AIDS Litigation Reporter 8/10/90.: FACTS: The defendant was indicted by a grand jury on charges of assault with a deadly weapon for having forced a thirteen year old male to have sex with him. The deadly weapons were Feaster's penis, semen and other bodily fluids infected with HIV. It is believed that this is the first time someone with AIDS has been charged with using their bodily fluids as a dangerous weapon.; While knowingly infected with HIV, Feaster was charged with committing acts of sodomy, enticing a minor child, taking indecent liberties with a minor child, and cruelty to children.; Feaster encountered his victims, including five other males between the ages of nine and fifteen, at his home in Washington D.C. He often offered to care for the children while the parents coped with drug addictions.; The assault with a deadly weapon charges were dismissed because the prosecutor had failed to prove the essential element: that HIV had been transmitted to one of the alleged victims. Feaster was convicted on twenty-six charges, including sodomy and cruelty to children.

[56]. State v. Sherouse, No. CR 87-7057, Fla. 9th Jud. Cir. Ct., Orange Cty., AIDS Litigation Reporter 7/14/89.: FACTS: A prostitute has been convicted of AIDS-related prostitution charges based on a state law enacted in 1987. Of the six misdemeanor counts she was convicted of, two were violations of a state law prohibiting prostitution while knowingly infected with HIV.; Although the defendant could have been sentenced to prison for four years or more, the judge sentenced her to four years probation, ordering her to remain at home at all times under house arrest except when she must leave for medical attention.; Update since the AIDS Litigation Project I:; The decision of the Florida Appellate Court dropping the manslaughter charges against the defendant were reported in the AIDS Litigation Project I. Since that time the defendant has been convicted on six misdemeanor counts by the 9th Judicial Circuit Court of Florida.

[57]. Davis v. State, 196 Ga. App. 390, 396 S.E. 2d 301.: FACTS: The defendant was convicted of kidnapping, aggravated sodomy, reckless conduct by an HIV-infected person, attempted aggravated sodomy and attempted reckless conduct by an HIV-infected person.; ISSUE: Did the trial court err by admitting into evidence certain sexual devices normally associated with homosexual activity?; HOLDING: The trial court did not err in admitting the evidence.; REASONING: The evidence was admissible as tending to show the defendant's "bent of mind" toward activity with which he was charged.

[58]. State v. Haines, 545 N.E.2d. 834 (Ind.App. 2nd Dist. 1989).: FACTS: The defendant, Haines, was found by police officers and paramedics, lying in a pool of blood with his wrists slashed and bleeding. When the officers and paramedics tried to help Haines, he began waving his arms, splashing blood onto the others, and yelling that he had AIDS, wanted to die, and wanted to give AIDS to the others. Haines pushed a blood-soaked wig into the face of a police officer, and scratched, bit, and spit at the paramedics. By the time Haines was brought to the hospital, the police officer was covered with Haines' blood and was bleeding himself from cuts and scratches. The paramedic was bleeding from a bite on the arm.; Haines was charged with three counts of attempted murder. The jury convicted him on all counts, but the trial judge set aside the jury verdict and entered judgement of conviction on three counts of battery. Haines was sentenced to three two-year terms, to run consecutively.; ISSUE: Did the trial court err in setting aside the jury verdict of conviction of attempted murder?; HOLDING: The trial court erred in setting aside the jury verdict.; REASONING: The trial judge may not set aside a jury verdict unless all evidence "unerringly" points to an opposite conclusion. The trial judge did not believe that the State had produced sufficient evidence. However, it is error for the judge to weigh the evidence. If there is any evidence at all that could support the verdict, it must stand.; The trial judge also misinterpreted the required elements of the State's case. The State need only prove that Haines believed he had done all that was necessary to murder, and not that the murder was actually possible. While there was a lot of evidence at trial that supported the possibility of HIV transmission via Haines' actions, the State did not have to prove that the transmission did or should have occurred. This evidence does, however, eliminate the defense that the defendant`s conduct was so inherently unlikely to result in death that it was not a public danger.; It was possible for the jury to find that Haines knew he had AIDS, intended to murder the three people by HIV transmission, believed he could do so, and took a substantial step towards that goal. Thus, the jury verdict was wrongly set aside and must be reinstated. Haines must now be resentenced accordingly.; Update since the AIDS Litigation Project I:; The trial judge's ruling in this case was reported in the AIDS Litigation Project I. It is here reversed on appeal.

[59]. Mississippi v. McIntyre, No. E-367(B), Hinds Cty. Cir.Ct., April 13, 1989, AIDS Policy and Law 5/3/89.: FACTS: The defendant was arrested and pleaded guilty to violating a quarantine order. The defendant is a male prostitute who is HIV-positive. The Mississippi State Health Department had issued the quarantine prohibiting him from engaging in sexual activity without informing his partner that he was HIV-positive, soliciting for sex, donating blood, or sharing any device that could expose another person to the defendant's blood. The legislature had made a violation of this quarantine a felony with a maximum penalty of five years and a $5,000 fine. The defendant was sentenced to 2 years in the state penitentiary, where he will probably be put in an isolation ward and will receive counselling.

[60]. New Jersey v. Smith, Nos. 2114-8-89, I-2890-11-89, N.J. Super. Ct., Camden Cty., AIDS Litigation Reporter 4/27/90.: FACTS: A jury has found the defendant Smith guilty of attempted murder for biting a guard while Smith was on his way for medical treatment for his HIV infection.; Smith allegedly incited a fight between himself and the guards during which Smith bit one of the guards' hands. The guard testified that before the fight Smith had said, "I'm going to give you AIDS. You're going to die from what I've got."; Smith was sentenced to a maximum of twenty-five years. He must serve twelve years before becoming eligible for parole.

[61]. Pennsylvania v. Brown, No. 1263 of 1988, Pa. Ct. of Common Pleas, Centre Cty., AIDS Policy and Law 3/7/90.: FACTS: An inmate who had tested positive for HIV and Hepatitis B was acquitted of a charge of attempted murder but was convicted of aggravated assault.; Brown had thrown his own feces at a guard, apparently because he was suspicious that his mail was being opened. It was not proven that Brown had acted with the intent to kill the guard by infecting him. Therefore, he was convicted of aggravated assault, which carries a lower penalty than attempted murder.

[62]. Washington v. Stark, No. 90-1-00030-2, Wash. Super. Ct., Clallam Cty., AIDS Litigation Reporter 7/13/90.: FACTS: Calvin Stark has been found guilty of second degree assault and sentenced to ten years in jail. He is the first person to be charged and convicted under a new Washington state law making it a crime for a person who is HIV-positive to engage in sexual intercourse without informing the partner of his infection. The judge ordered that Stark serve the maximum sentence allowed by the law.

[63]. Wisconsin v. Cummings, 451 N.W.2d 463 (Wis. Ct. App. 1989).: FACTS: An HIV-negative prisoner bit a corrections officer. The prisoner claimed that he had AIDS and told the officer that he had given it to the officer through the bite. The prisoner was convicted of battery and he appealed the conviction.; The appellate court affirmed the conviction. The statement that Cummings made to the officer was enough to establish intent to do bodily harm.

[64]. Scroggins v. Georgia, No. A90A1140, -41, -42, -44, Ga. Ct. of App., AIDS Litigation Reporter 7/27/90.: FACTS: The Georgia Court of Appeals will be deciding the appeal of an HIV-positive man convicted of aggravated assault with intent to murder for biting a police officer. The man is serving a ten year sentence for this conviction.; The defendant argued that the potential for infecting someone through salivary transmission is very small and therefore not likely to cause death.

[65]. Ada Cty. v. Thomas, No. M9002909, Idaho 4th Dist. Ct., Ada Cty., AIDS Litigation Reporter 6/8/90.: FACTS: Thomas was arrested and indicted on four counts of knowingly transmitting HIV-infected bodily fluids and two counts of statutory rape involving five women who allegedly were not informed of the defendant's infection. Thomas pleaded not guilty to all counts.; The defendant is being charged under a two-year-old state law which makes it a felony for a person who knows that he or she is HIV-positive to transfer or attempt to transfer bodily fluids to an unwilling person. Each count under this law could carry up to a fifteen year sentence and a fine of $5,000.

[66]. People v. Caldwell, No. 11595-89, N.Y. 1st Dist. Ct., Suffolk Cty., AIDS Litigation Reporter 5/26/89.: FACTS: The defendant is a twice-convicted prostitute. She was arrested for prostitution and taken to police headquarters. While there she threatened the police officer who was processing her that she would pass her "germs" to him. She bit him on the arm, breaking the skin.; The Suffolk County District Attorney's office attempted to induce Caldwell to submit to an HIV test through a court order. However, Caldwell submitted to the test before her hearing, in which she was accused of second degree assault. Should the test results be positive, additional charges will be filed against her.; STATUS: This case is pending.

[67]. In re Osborne, No. CF-90-337, Tulsa Cty. Dist. Ct., AIDS Policy and Law 1/24/90.: FACTS: A female prostitute has been accused of intentionally engaging in an activity that will transmit HIV to another, after soliciting four undercover policemen. Under a 1988 Oklahoma law it is a felony to intentionally transmit HIV to another person. Osborne has pleaded not guilty.; STATUS: This case is pending.

[68]. State v. Weeks, Case No. 15-183, Tex. Dist. Ct., Walker Cty., AIDS Policy and Law 11/29/89.: FACTS: Weeks, a state prison inmate serving two years for aggravated robbery, was being transported to another prison where prisoners with AIDS are treated. Weeks, who has AIDS, spat on one of the guards while they were at a rest stop. Weeks was charged with attempted murder. Witnesses testified that Weeks intended to infect the guard with HIV because he wanted "to take as many people as he could when he goes." The guard so far has tested negative for HIV.; The prosecution produced expert witnesses who testified that HIV positive saliva is a deadly weapon, because it is possible to transmit HIV by spitting. Weeks was convicted of attempted murder for spitting and sentenced to life imprisonment. On the way to hear the jury's sentence, Weeks spat on another guard.; STATUS: An appeal has been filed.

[69]. State v. Johnson, No. 11,981, Tex. Dist. Ct., Coryell Cty., AIDS Policy and Law 11/29/89.: FACTS: Shaquita Johnson, an HIV-positive inmate of the Department of Corrections in Gatesville, spat on a guard. She has been charged with attempted murder.; The defense argues that the state's new omnibus AIDS law should provide guidance in this case although it was enacted after the spitting incident. Under this law, Johnson's charged offense would be treated as a third degree felony rather than a first degree felony, and is only punishable by two to ten years in jail and a $10,000 fine. The new law, however, is concerned only with intentional exposure through blood products and not saliva.; STATUS: This case is pending.

[70]. People v. Darby, The New York Times 7/9/90.: FACTS: The defendant is a former security guard at Columbia University who is accused of raping a seventeen-year-old student at knifepoint. He pleaded guilty to the charge.; A plea bargain has been arranged between the parties. The defendant has agreed to submit to an HIV test in exchange for a reduction in sentence. The defendant would have faced eight to twenty-five years. He will now be sentenced to a maximum of five to fifteen years.

B. Prejudice to the Fairness of the Trial

[71]. Wiggins v. Maryland, no. 94-1988, Md. Ct. of App. Sources: LAMBDA, U.S. Law Week, March 28, 1989.: FACTS: Wiggins was a homosexual male on trial for felony murder, robbery with a deadly weapon and felony theft. Both the murder victim and Wiggins' co-defendant had AIDS; it was unknown whether Wiggins was HIV-positive. The trial judge ordered the guards who escorted Wiggins to and from court to wear rubber gloves, and ordered the jury not to touch trial exhibits for their own protection. The jury convicted Wiggins of all charges.; Wiggins appealed his conviction on the grounds that he was prejudiced by the precautions ordered by the trial judge. The intermediate appellate court held that the gloves were "unnecessary but harmless error."; ISSUE: Did the intermediate appellate court err in holding that Wiggins was not prejudiced by the trial judge's precautions?; HOLDING: The court erred in holding that Wiggins was not prejudiced.; REASONING: The Court of Appeals found that Wiggins was deprived of a fair trial because it was improperly suggested to the jury that he had AIDS. "It is a far cry from not being prejudiced because the case has 'touches of homosexuality in it' and not being prejudiced because the defendant may have AIDS."

[72]. State v. Hudson, 1989 Tenn. Crim. App. Lexis 773, filed Nov. 8, 1989, appeal denied March 5, 1990, CCA no.3.: FACTS: The defendant was convicted by a jury for the premeditated murder of his co-worker and travelling companion. He was sentenced to life imprisonment. He moved for a new trial and that motion was denied. He now appeals the conviction on eight grounds. One ground for appeal is that during the trial, two sacks were left within view of the jury on the prosecution table. The sacks were marked, "CAUTION, AIDS." They were evidence from another trial in which the defendant had been a party.; ISSUE: Does the presence of two sacks marked, "CAUTION,AIDS" on the prosecution table entitle the defendant to a mistrial?; HOLDING: The presence of two sacks marked, "CAUTION, AIDS" did not prejudice the defendant and does not entitle him to a mistrial.; REASONING: The trial judge had ruled that the prosecution could not mention to the jury that the defendant had been involved in separate litigation pertaining to blood testing for HIV. The judge also ordered that the two sacks marked, "CAUTION, AIDS" be removed from the sight of the jury. The sacks, "if ever removed, reappeared." The defendant's lawyer pointed out the sacks to the judge and moved for a new trial. The judge told the jury that the sacks had nothing to do with this case, and the jury "all agreed with that." The judge denied the motion for a new trial.; The appeals court stated that it "is apparent to us that the specter of AIDS hovered over this case from the start." Therefore, there is no reason to think that the presence of the sacks prejudiced the defendant in any way, or that a mistrial is needed. The appeals court, however, does not attempt to elucidate where the "specter" came from or why it "hovered" there. In the recitation of the facts of the murder and the discussion of the other seven grounds for appeal, there is no hint of AIDS or of any high risk behavior.

[73]. Beason v. Harcelrood, 1991 WL 5073 (Or. App.) (Jan. 23, 1991).: FACTS: The defendant was conducting a grand jury investigation of whether the plaintiff had committed the crime of unauthorized use of a motor vehicle. During that investigation, the defendant discovered that the plaintiff is a homosexual. Shortly thereafter, the defendant told the news media that the plaintiff is a homosexual, has AIDS, and had induced or compelled others to have unprotected sex while concealing his illness. Other than the plaintiff's sexual orientation, those statements were false. The plaintiff appealed from a judgement in favor of defendants.; ISSUE: Were the defendants entitled to judgment on the basis of an executive privilege defense for the statements made to the media in their official capacities, if there were neither required nor authorized to make those statements?; HOLDING: The executive privilege defense is not applicable.; REASONING: The pleadings do not show whether prosecutors are required or authorized to make statements to the media. If they were not, a jury could find that the defendant's statement was defamatory.; STATUS: This case awaits trial.

[74]. A.C.L.U. v. Three Judges, February 2, 1989. Source: A.C.L.U. (Press Release).: FACTS: The A.C.L.U. and thirteen other organizations filed a complaint with the Judicial Inquiry Commission of the State of Alabama against three Alabama judges. The judges allegedly refused to admit HIV-positive persons into their courtrooms, took pleas and passed sentences by phone for HIV-positive offenders, and made discriminatory statements against homosexuals.; ISSUE: Did the Alabama judges violate the Canons of Judicial Ethics by discriminating against persons with or perceived to have HIV infection?; STATUS: This complaint is awaiting a decision by the Judicial Inquiry Commission.

C. Compulsory Testing of Criminal Defendants

[75]. Government v. Roberts, CR No. 90-166, U.S. Dist. Ct., Dist. V.I., 1991 U.S. Dist. LEXIS 2292, 1/18/91.: FACTS: A man and woman were picnicking on a beach when defendant Roberts approached them. Roberts allegedly forced the woman to handcuff the man and ordered the couple at gunpoint to have sexual intercourse. The man said he could not do so. Roberts is charged with raping the woman himself and afterwards shooting her in the neck. The woman fled and swam out to sea where she was picked up by a boat. The police found the man shot in the head and midsection.; The government seeks to have Roberts tested for the human immunodeficiency virus (HIV) to inform the rape victim whether she has been exposed to the virus.; ISSUE: Does an involuntary HIV test offend the defendant's fourth amendment right against unreasonable searches and seizures?; HOLDING: A blood test for HIV would not offend the defendant's fourth amendment rights.; REASONING: Although a forced blood test is an intrusion of the body, blood tests are considered routine in today's society and are not significant or unduly extensive intrusions. Also, the defendant's privacy interests will only be minimally effected because only the defendant, the victim, and their doctors will know the outcome of the test. Furthermore, there are compelling reasons to perform the test. The government has an interest in protecting victims of violent crimes such as rape. The victim will need much monitoring and treatment in the event that she has contracted the virus.

[76]. Johnetta J. v. Municipal Ct. for San Francisco, 218 Cal. App. 3d 1255, 267 Cal. Rptr. 666 (1990).: FACTS: Johnetta became violent during a child dependency hearing, and bit a sheriff's deputy on the arm, drawing blood. She was charged with two felony assaults and misdemeanor interference with a peace officer.; Proposition 96 is a regulation passed by the voters in November 1988 which requires mandatory HIV testing for anyone charged with interfering with a peace officer, when there is probable cause that the defendant's "bodily fluids have mingled" with the officer's. The Municipal Court ordered Johnetta to submit to the HIV test pursuant to this regulation.; Johnetta claims the test unconstitutionally violates her rights to privacy and freedom from unreasonable searches. She filed a suit to declare Proposition 96 invalid. However, a stay delaying the HIV test until after trial was denied, so Johnetta had to submit to the test. Although the case is now moot as to Johnetta, it "raises questions of statewide concern" and will be decided.; ISSUE: Is the Proposition 96 mandatory HIV test unconstitutional?; HOLDING: The Proposition 96 mandatory HIV test is not unconstitutional.; REASONING: Besides pertaining to those who interfere with a peace officer, Proposition 96 also is triggered in cases where HIV may have been transmitted to a sex crime victim, or to a prison official, firefighter, or emergency medical technician. The stated purpose of the regulation is to provide information to the victims so they might be "relieved from groundless fear" or seek immediate medical treatment. When the offender's HIV status is determined, it is disclosed to the victim, the victim's employer, the offender's jailer, if any, and the medical officer at the offender's jail, if any. If the offender tests HIV-positive, that will also be reported to the State Department of Health Services.; Johnetta contends there must at least be probable cause to believe she was HIV-positive at the time of the bite, and that the virus may actually have been transmitted to the deputy. It was determined that there was no blood in Johnetta's mouth at the time of the bite, but saliva was transferred through the "deep puncture type bite." Three medical experts and several court precedents indicate "there is no reason to think HIV is transmitted by biting" and there is no reason to believe Johnetta was HIV-positive.; The expert testimony was divided on the practical utility of the mandatory test. It is agreed that there is no way to definitively determine whether the victim will seroconvert; however, the test was found likely to reduce anxiety in the victim.; The Fourth Amendment prohibiting unreasonable search and seizure requires a balancing test to determine whether a search is in fact unreasonable. The court balanced the possibility of "devastating" discrimination against persons with AIDS and the right to know. After a long and detailed analysis, the court held that the mandatory HIV test does not violate the Constitution because the search is reasonable. The court agreed that the test may not reveal definitive data, but "it is not for the courts to judge the wisdom of legislation," but only to determine the legislation's constitutionality.

[77]. Love v. Superior Court, 276 Cal. Rptr. 600 (1990).: FACTS: The plaintiffs were convicted of soliciting an act of prostitution and were ordered to undergo AIDS testing and counseling as a result of the convictions. They challenged the testing requirements of the statute alleging that it violated their Fourth Amendment right to be free from unreasonable searches and seizures, did not comport with requirements of due process, and denied them equal protection of law.; ISSUE: Did the statutory scheme mandating testing for AIDS of persons convicted of soliciting acts of prostitution violate defendant's Fourth Amendment rights, not comport with due process or deny equal protection of law?; HOLDING: A state's interest in stemming the spread of AIDS was a "special need" which, when balanced against minimal intrusion of the defendants, withstands Fourth Amendment challenge. The reasonable relationship between statute's means and ends shows it comports with due process. Where the statute was to be construed similarly with regard to use of blood test information, it did not deny equal protection.; REASONING: The relevant question is whether and to what extent the group affected by the statute are members of a group at high risk for AIDS and whether and to what extent such persons threaten to transmit HIV to the general population. The statute imposed no additional penalty for a crime, but presented potential for increased punishment for a subsequent offense.

[78]. California v. Rice, A.C.L.U. AIDS Docket, July 1990.: FACTS: The defendant had been arrested for driving under the influence of alcohol after a car chase that resulted in a crash. When pulling the defendant from the car, both the defendant and a police officer were cut. Because of the possibility of HIV exposure, the police officer requested that the defendant be tested for HIV under the new Hart Act of the California Penal Code. The A.C.L.U. filed an amicus brief challenging this new law's constitutionality. An order for the testing was issued in March of 1989 and the defendant decided not to appeal this further.

[79]. People of Illinois v. Madison and People of Illinois v. Adams, Nos. 88-123613, 87-281577, Cir. Ct. Cook County, 1st Dist. Source: LAMBDA.: FACTS: These cases were consolidated to determine the constitutionality of a state statute regarding HIV testing. Each defendant was convicted of prostitution. The State has ordered them to submit to HIV testing because their offense was in a high-risk behavior category. The defendants refuse to submit to the tests.; ISSUE: Does a mandatory HIV test for convicted prostitutes violate their constitutional rights to be free from unreasonable searches and to equal protection?; HOLDING: A mandatory HIV test violates the rights to equal protection and freedom from unreasonable searches.; REASONING: The court found that the goal of determining whether prostitutes were HIV-positive at the time of their offenses could not be reached. The nature of the virus and of the testing procedures makes that information undiscoverable. Thus, the statute violates the rights to equal protection and freedom from unreasonable searches. The statute is struck down and the defendants need not be tested.

[80]. People v. Durham, 553 N.Y.S.2d 944 (1990).: FACTS: The defendant is charged with punching, kicking, and raping the victim. After the rape, the defendant allegedly told the victim that he has AIDS. Although a semen sample was obtained from the body of the victim, the "New York City Police Department Laboratory will not, as a matter of policy, analyze" the sample where there is an indication of AIDS. The prosecution has requested that a blood sample be taken from the defendant for two reasons: to determine the defendant's HIV status so the semen may (or may not) be analyzed; and to be able to perform DNA fingerprinting, to match the defendant's blood to the semen.; The defendant points to a "unique Catch-22 situation" in that the prosecution must have a semen sample for use in comparison before the court may order blood for DNA fingerprinting, but the semen in question will not be analyzed unless and until blood is taken to determine HIV status.; ISSUES: 1. May the court order a blood sample without the prosecution first proving that they have a sample with comparative value for DNA fingerprinting?; 2. Is it unconstitutional to force the defendant to provide a blood sample to be tested for HIV?; 3. Is the defendant's HIV status irrelevant and prejudicial to his charge of rape?; 4. Is the taking of a blood sample from the defendant, to be tested for HIV, prohibited by the New York Public Health Law?; HOLDING: 1. The court does not rule on the issue of DNA fingerprinting.; 2. It is not unconstitutional to force the defendant to provide a blood sample to be tested for HIV.; 3. The defendant's HIV status is relevant to the charge of rape.; 4. The taking of a blood sample to be tested for HIV is not prohibited by the New York Public Health Law.; REASONING: 1. The court acknowledges the "Catch-22" situation, wherein the police cannot use the semen sample they have for comparison to the blood sample they want, without first testing the blood for HIV. However, the court merely notes the situation and does not comment on it.; 2. There are three reasons that the taking of a blood sample from the defendant is not unconstitutional. The defendant himself has raised the possibility that he has AIDS; the state legislature has allowed for blood testing within constitutional limits; and the defendant has not claimed that there is a health or religious reason for exemption from blood testing. Additionally, the victim has a right to know whether she has been exposed to HIV.; 3. The defendant's contention that his HIV status is irrelevant and prejudicial is "ludicrous." The defendant "cannot cite AIDS as both a sword and a shield at the same time." His HIV status is relevant in that the semen sample the police have obtained from the victim will not be analyzed until the defendant's HIV status is known.; 4. The New York Public Health Law which prevents HIV testing without written informed consent does not apply where there is authorization for HIV testing under the New York Civil Practice Laws and Rules. The court relies on the authorization found in the Civil Rules to hold that the test may be done without consent. The court does not, however, explain why it uses civil rules in a criminal case.

[81]. In re Anonymous, No. A-900066, N.Y. Ct. of App., AIDS Litigation Reporter 7/13/90.: FACTS: A man who had bitten three police officers and was forcibly tested for HIV challenged the ordering of a second HIV test by a New York State Supreme Court judge. This second test was performed while the defendant was locked to a wheelchair and the defendant requested that it be ruled illegal.; The New York Court of Appeals rejected without comment the defendant's motion.

[82]. Conte v. Merrell, 1989 N.Y. App. Div. LEXIS 16245, Dec. 20, 1989.

[83]. In re Anonymous, 549 N.Y.S.2d 308, 1989 N.Y. App. Div. LEXIS 16750 (1989).: FACTS: The defendant is charged with attempted murder. He allegedly bit three police officers in an effort to infect them with HIV. The County Court ordered a blood sample to be taken from the defendant, to be tested for HIV, for use as evidence in his prosecution. The defendant has petitioned the appeals court to overrule the County Court's order.; ISSUES: 1. Did the County Court act within its authority in ordering a blood sample from the defendant?; 2. Did the County Court err in ordering a blood sample from the defendant?; HOLDING: 1. The County Court was within its authority in ordering a blood sample from the defendant.; 2. The County Court did not err in ordering a blood sample from the defendant.; REASONING: 1. The New York Rules of Criminal Procedure specifically authorize the court to order that a blood sample be taken from a criminal defendant, where appropriate.; 2. It is not necessary to decide whether the County Court erred in ordering the blood sample, because the appeals court cannot overrule an order by the County Court which was within its power to order. However, were the court to decide this issue, it would hold that there was no error. The County Court acted within the rules of both criminal procedure and the Public Health Law concerning disclosure of HIV information.

[84]. Barrows v. Van Sciver, No. C88-05625, Utah 3rd Jud. Dist. Ct., Salt Lake Cty., AIDS Litigation Reporter 7/28/89.: FACTS: The plaintiff had been arrested and convicted for masturbating in a public restroom. The court ordered that he be tested for HIV because he had been convicted of a crime of moral turpitude. The plaintiff opposed the testing because there was no rational basis for such a test. A Utah 3rd District judge reversed the earlier court decision that the plaintiff be tested.; Update since the AIDS Litigation Project I:; The announcement of the complaint was reported in the AIDS Litigation Project I. Since that time the court has reversed the order to test the plaintiff for HIV.

[85]. State v. Farmer, 116 Wash. 2d 414, 805 P.2d 200 (1991).: FACTS: The defendant is accused of hiring adolescent male prostitutes for sexual intercourse. It is alleged that the defendant engaged in oral and anal sex with two boys, at two different times, took sexually explicit photographs of both boys, and subsequently paid each $20 for their services. The defendant was convicted; prior to sentencing, the defendant was ordered to submit to an HIV test, which proved to be positive. This evidence contributed to the court's finding that the defendant knew he had AIDS prior to his criminal conduct. The court found this to be deliberate, cruel and malicious conduct which warranted an exceptional sentence. The defendant was sentenced to 90 months imprisonment.; ISSUES: 1. Was the nonconsensual HIV test violative of the defendant's constitutional right to privacy?; 2. Without the benefit of the HIV test results, was the exceptional sentence justified?; HOLDING: 1. Forcing the defendant to undergo HIV testing violated his constitutional right to privacy.; 2. Even without the benefit of the HIV test results, the exceptional sentence was justified.; REASONING: 1. Nonconsensual HIV testing must be supported by a legitimate, compelling state interest. However, the stated purpose of requiring the test, to corroborate testimony that the defendant had AIDS prior to the criminal acts charged here, was not a compelling reason to justify an invasion of the defendant's right to privacy. The test was of no value because the results could not be related back in time. Therefore, the defendant should not have been required to submit to the HIV test.; 2. From the testimony of two witnesses, the trial court found that the defendant knew or had reason to believe that he had AIDS. Thus, the court found that the defendant recklessly exposed the minors to HIV and that this was cruel and malicious. Washington law provides that deliberate cruelty to a victim of a crime justifies an exceptional sentence. Therefore, even without the HIV test results, the defendant's exceptional sentence was justified.

D. Sentencing for HIV Positive Offenders

[86]. United States v. Depew, 751 F. Supp. 1195 (E.D. Va. 1990).: FACTS: The defendant is charged with conspiracy to kidnap and conspiracy to sexually exploit a child. It is alleged that the defendant and another man planned to kidnap a young male child, sexually molest him, then "snuff" or kill him, while filming these events and thereafter marketing the film. Two under cover agents posed as co-conspirators, taping various conversations and telephone calls. The defendant suffers from AIDS and requested a downward departure in his prison sentence due to illness.; ISSUE: Should the defendant receive a sentence other than imprisonment because he has AIDS?; HOLDING: The defendant should not receive a downward departure in his sentence because he suffers from AIDS.; REASONING: Only an extraordinary physical impairment justifies a sentence other than imprisonment and AIDS and other terminal conditions such as cancer are not such physical impairments. Additionally, the Bureau of Prisons is well-equipped to give the defendant the medical treatment he needs. Therefore, the court found that the defendant's illness, though lamentable, was no basis for a sentence other than imprisonment.; STATUS: The court sentenced the defendant for a period of 460 months.

[87]. Griner v. United States, Crim. Action No. 88-40044-01, Civ. Action No. 89-3493-T, U.S. Dist. Ct., Dist. Kansas, 1990 U.S. Dist. LEXIS 1333, January 31, 1990.: FACTS: The plaintiff is a convicted criminal. He has tested positive for HIV and receives AZT treatment. The plaintiff seeks a reduction of his sentence.; ISSUE: Can the plaintiff's sentence be reduced due to his deteriorating medical condition and the poor treatment he is receiving while in custody?; HOLDING: The plaintiff's sentence cannot be reduced because of his deteriorating medical condition or the poor treatment he is receiving.; REASONING: The court may not reduce a sentence once it has been imposed because it lacks any authority to do so. Thus, the court is powerless to grant the requested relief.

[88]. Brogdon v. State, 781 P.2d 1370 (Alaska App. 1989).: FACTS: When Brogdon learned he was HIV-positive, he became seriously depressed. Several months later, while extremely intoxicated, he drove his car in excess of one-hundred miles per hour on a blind, no passing zone. He collided with another car, seriously injuring two passengers, and then tried to leave the premises. He pleaded no contest to second degree assault and was sentenced to five years, with two years suspended. Brogdon appeals, claiming his behavior had been uncharacteristic, so his sentence was too harsh.; ISSUE: Should one's sentence be reduced if one's offense is a result of depression about one's HIV status?; HOLDING: A sentence that is within the range approved for the offense is not excessive.; REASONING: The court decided only that the lower court judge had not erred in sentencing Brogdon. The lower court judge had found that, because the offense was "exceptionally serious," a substantial sentence must be imposed to prevent the message that "situational stress is an excuse for extreme recklessness."

[89]. State v. Priest, Nos. in-86-02-0190-R1, in-86-02-0191-R1, Sup. Ct. Del., 1989 Del. Super. LEXIS 480, Nov. 15, 1989.: FACTS: The defendant has pleaded guilty to two counts of second degree rape and been sentenced to twenty-five years. Since 1986, he has attempted repeatedly to withdraw his guilty pleas. This case is a hearing on a motion for post-conviction relief based on seven procedural points, plus the claim that he was HIV-positive or had AIDS at the time of the offense. The defendant submitted to the court medical records which "would appear to indicate that defendant may have tested positive for HIV."; ISSUE: Does the possibility that the defendant had AIDS or was HIV- positive at the time of the offense provide any basis for post- conviction relief?; HOLDING: The possibility that the defendant had AIDS or was HIV- positive at the time of the offense provides no basis for postconviction relief.; REASONING: The defendant seems to claim that if he were guilty of the rapes, the victim would now test positive for HIV. He has not, however, proven that he was actually infected at the time of the offense, nor that the victim would necessarily have contracted the virus. Neither has the defendant proven that, if he did have AIDS at the time of the guilty pleas, this represented manifest injustice which merits the withdrawal of his pleas.

[90]. New Jersey v. Bilella, No. A-5635-87T4, N.J. Super. Ct., App. Div., AIDS Litigation Reporter 5/11/90.: FACTS: A New Jersey Superior Court has ruled that HIV-positive defendants deserve no special treatment when sentenced simply because they are HIV-positive.; The defendant in this case is an HIV-positive man who was convicted of assaulting a police officer and sentenced to more than four years. The defendant argued that his HIV infection and deteriorating physical condition should have been a mitigating factor.; The court noted that the defendant may apply for an early compassionate release but held that the defendant was not entitled to a lesser penalty simply because he is infected with HIV.

[91]. People v. Escobales, 551 N.Y.S.2d 757 (1990).: FACTS: The defendant was charged with the felony sale and possession of controlled substances. Through plea bargaining, the defendant was convicted of a lesser charge and was sentenced to the minimum allowable sentence of two to four years. After beginning to serve his sentence, the defendant learned that he has AIDS. He is now being treated at the Rikers Island Hospital, where he is in an advanced stage of AIDS, with a life expectancy of twelve to eighteen months. The defendant now considers his ordinarily lenient sentence to be equal to life imprisonment, and requests his sentence to be set aside.; ISSUE: Does a sentence which would ordinarily be lenient become unconstitutionally cruel and unusual if the prisoner would die of AIDS before the sentence is served?; HOLDING: While it may be unfortunate, the sentence is not so cruel and unusual as to be unconstitutional.; REASONING: The sentence may not be set aside unless it is invalid as a matter of law. The defendant is receiving proper treatment at the prison hospital, and he is a candidate for AZT treatment. His sentence cannot be declared unconstitutional, so the court cannot set it aside as invalid.; Although the court must uphold the sentence, the New York State Department of Corrections may release the prisoner early through the Compassionate Release Program. This court joins with the defendant's physicians in recommending that the Department of Corrections exercise this option in the "interest of justice."

[92]. People v. Watts, No. 2508SE, 1990 N.Y. App. Div. LEXIS 7324, June 11, 1990.: FACTS: The defendant was sentenced on criminal charges, and seeks to have his sentence reduced.; ISSUE: Is an HIV-positive status, in and of itself, grounds for reducing an otherwise appropriate sentence? Holding:; An HIV-positive status is not grounds for reducing an otherwise appropriate sentence.; REASONING: The court's reasoning is not available. Only a decision and an order were released.

[93]. People v. Holley, 1990 N.Y. App. Div. LEXIS 7025, June 4, 1990.: FACTS: The defendant pleaded guilty to two counts of third degree sale of controlled substances. He was sentenced by the Kings County Supreme Court to two concurrent terms of five to ten years plus a $200 fine. The defendant appeals his sentence on the grounds that he has AIDS and other medical conditions.; ISSUE: Should the court reduce an otherwise appropriate sentence solely because the defendant has AIDS?; HOLDING: The court will not reduce an otherwise appropriate sentence solely because the defendant has AIDS.; REASONING: The "mere fact" that the defendant has AIDS does not support a reduced sentence. Further, if he wishes to "ameliorate the conditions" of his incarceration, the defendant should appeal to the New York State Department of Correctional Services, and not the court.

[94]. State v. Sierra, 2003, 8504/90, 1990 WL 264642 (N.Y. Sup.) 12/12/90.: FACTS: The HIV-positive defendant was tried and convicted for possession of controlled substances. He has been diagnosed as being in the AIDS Related Complex stage of infection and requests leniency in his sentencing.; ISSUE: Should the defendant be given a lenient sentence because he has ARC?; HOLDING: The defendant should not be given a lenient sentence because he has ARC.; REASONING: "To allow an individual with a long criminal record, including felony convictions, to use his medical misfortunes (which he was aware of prior to the commission of the instant felony) as a tool to totally bypass the Justice system is unacceptable." The compelling factors which warrant a dismissal are not present in this case.

[95]. Commonwealth v. O'Neill, 573 A.2d 1112 (Pa. 1990).: FACTS: O'Neill pleaded guilty to ten counts of burglary, theft, and unlawful credit card use. He was sentenced to four to ten years in prison, followed by probation. Four years is within the standard guidelines, but the maximum aggregate term O'Neill could have received was fifty-six years. O'Neill challenged his sentence on three grounds, relating to ineffective counsel, his HIV-positive status, and his desire for drug rehabilitation assistance. He also filed a petition under the Post Conviction Relief Act (PRCA).; ISSUES: 1. Does O'Neill's HIV-positive status transform his sentence into unconstitutionally cruel and unusual punishment?; 2. Do "principles of fairness and humanitarianism" require that O'Neill be released to a drug rehabilitation program in his home state of Massachusetts?; 3. May O'Neill's PRCA petition be considered while this appeal is pending?; HOLDING: 1. Sentencing an HIV-positive person to prison is not, in and of itself, cruel and unusual punishment.; 2. It is within the trial court's discretion to sentence an addicted person to prison.; 3. The PRCA petition is premature but may be refiled at the appropriate time.; REASONING: 1. O'Neill does not claim that his sentence is disproportionate to his crimes. He does not claim that the trial court abused its discretion or made a legal error. He claims, without citing any authority, that because he is HIV-positive, his sentence is transformed into cruel and unusual punishment. The court "cannot and will not make the sweeping pronouncement he seeks." The court acknowledged that O'Neill may die while serving his sentence, but pointed out that he has not yet shown any symptoms of AIDS. Further, even the fact that O'Neill may die before the end of his prison term does not make his sentence unconstitutional.; The court also stated that if prison officials show deliberate indifference to his medical needs, this would be cruel and unusual punishment, and today's decision would not prevent O'Neill from seeking relief from that harm.; 2. O'Neill challenges the trial court's discretion in sentencing him to prison in Pennsylvania instead of to a drug rehabilitation center in his home state of Massachusetts. The record of the trial indicates that the judge did consider O'Neill's drug addiction, HIV status, and criminal record. The trial judge acted within his discretion and within approved guidelines in sentencing O'Neill to four to ten years. The appeals court has no authority with which to overrule the trial court judge. However, the court pointed out that, if O'Neill begins to exhibit symptoms of AIDS, the trial court has the discretion and authority to modify the sentence.; 3. The PRCA petition may not be considered while this direct appeal is pending. O'Neill may refile it later.

[96]. State v. Guayante, 99 Ore. App. 649, 783 P.2d 1030 (1989).: FACTS: The defendant pleaded guilty to and was convicted of charges of sexual abuse, attempted rape and sodomy, all with the same victim--a thirteen year old girl. Before he was sentenced, the trial judge questioned the defendant about whether and when he knew that he had AIDS. The defendant admitted that he knew he had AIDS at the time of the offenses.; The judge told the defendant that he carries "one of the most deadly and dangerous diseases to hit the earth since the 13th Century." The judge also stated that the offenses "approached attempted murder" by placing the girl at risk to "suffer for years, and die one of the most horrible deaths possible." The judge told the defendant that he had seen some people dying of AIDS and "it's horrible." The defendant was then sentenced to consecutive prison terms which totalled thirty years.; ISSUE: Did the trial court err in considering the defendant's knowledge that he had AIDS as an aggravating factor in determining sentencing?; HOLDING: The trial court did not err in considering the defendant's knowledge that he had AIDS as an aggravating factor in determining sentencing.; REASONING: The court has broad discretion in sentencing and may weigh aggravating and mitigating factors. The trial court here did not discriminate against the defendant because he has AIDS. Rather, the court considered the fact that he knew he had AIDS when he committed sexual offenses, as an aggravating circumstance.; The only question the appeals court may consider is whether the sentence imposed was unconstitutional. This sentence is constitutional and within the trial judge's sound discretion.; Update since the AIDS Litigation Project I:; The sentencing judge's statements to the defendant were reported in the AIDS Litigation Project I. This court now upholds the sentence.

E. Indictment Dismissed in Interests of Justice

[97]. People v. Shewchuk, N.Y. Sup. Ct., N.Y. Cty., NYLJ 4/20/90. [IV.E.]: FACTS: The defendant was arrested for possession of stolen property on two separate occasions; the second arrest occurred while the defendant was out on bail. The defendant is HIV-positive.; In light of the defendant's illness, the defense asked that his indictment be dismissed in the interests of justice. The judge denied this motion, noting that in the defendant's case his illness had not caused him to alter his lifestyle of crime.

[98]. New York v. Ortiz, Indictment Nos. 4602/88, 5984/88, N.Y. Sup. Ct., Bronx Cty., Crim. Term, Part 45, AIDS Litigation Reporter 3/9/90.: FACTS: A Supreme Court judge has dismissed two criminal indictments against a defendant who is in the final stages of AIDS, based on the expert testimony of a physician specializing in AIDS treatment.; The defendant, who was indicted on drug and weapons charges, suffers from syphilis of the brain, AIDS dementia complex, and other AIDS-related illnesses. His life expectancy is sixty to ninety days.; The judge released Ortiz into the third part custody of his sister.

[99]. People v. Bordowitz, No. 90-n028423, Crim. Ct. Manhattan. Source: A.C.L.U. (Motion to Dismiss, June 14, 1990).: FACTS: The defendants are members of ACT UP, an AIDS advocacy organization. The defendants had notified the police that they planned to carry out an illegal needle-exchange program in Manhattan in order to prevent the transmission of HIV among intravenous drug users. They then collected used needles in biohazard waste containers, and distributed clean needles, AIDS education materials, counselling, and treatment information. They were arrested for criminal possession of hypodermic instruments, a class A misdemeanor. They peacefully turned over all needles to the police, went quietly to the police station, and pleaded not guilty. They are the first defendants arrested on this charge whose sole purpose in possessing the needles was disease prevention.; ISSUE: Should the court use its broad discretion to dismiss this case in furtherance of justice, because a conviction would serve no useful purpose?; STATUS: The court has not yet ruled on the motion to dismiss.

F. Miscellaneous

[100]. Massachusetts v. Parker, No. 890123, Boston Mun. Ct., AIDS Policy and Law 1/24/90.: FACTS: The defendant is an AIDS activist who distributes sterile needles to drug addicts to prevent the spread of AIDS. He was charged under Massachusetts law for illegal possession of needles.; The judge acquitted the defendant because he lacked the necessary intent to violate the law, the purpose of which is to curb drug abuse.

[101]. People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (1989).: FACTS: The defendants are members of ACT UP, a group which focuses attention on AIDS. They are charged with third degree criminal trespass. On July 19, 1988, Commissioner Joseph of the New York City Department of Health announced an epidemiologic report reducing the estimated number of HIV-infected people in New York City from 400,000 to 200,000. This statistic was calculated based on a method developed in San Francisco which Dr. Joseph thought to be applicable to New York City. ACT UP, as well as several other community leaders and AIDS activists were concerned that the number was too low, and feared that funding for AIDS services would be cut. Some also thought Dr. Joseph's report was unscientific, racist, and heterosexist.; After having held several meetings to discuss concerns about the report, on August 3 several members of ACT UP held an "unscheduled meeting" in Dr. Joseph's office. As they entered the office uninvited, three security officers and a fourth unidentified person told them to leave. They remained. They variously shouted slogans, banged on the conference table, and blocked Dr. Joseph's exit. At one point, Dr. Joseph sat down at the conference table with some of the defendants, who quieted down and began to ask questions. Dr. Joseph looked at each speaker but said nothing himself. Finally, all the defendants were arrested.; ISSUES: 1. Have the defendants provided enough evidence to support a justification defense?; 2. Were the defendants not guilty of trespassing because Dr. Joseph consented to the meeting?; 3. Should the case be dismissed in the furtherance of justice?; HOLDING: 1. As a matter of law, the defendants failed to provide evidence to support a justification defense.; 2. Dr. Joseph did not consent to the meeting.; 3. The motion for dismissal in furtherance of justice is denied.; REASONING: 1. There are five requirements for the justification defense. First, the defendants must have reasonably believed that the trespass was necessary to avoid an evil. The defendants offered no evidence tending to prove that Dr. Joseph's report would necessarily result in decreased AIDS funding. Second, the evil to be prevented must be imminent, and third, the justification defense fails where there are other options available. The defendants had options other than law-breaking and had the time to carry them out, but did not exercise these options. Fourth, the defendants' action must be reasonably calculated to accomplish the goal. The action these defendants took could not reasonably be expected to affect the statistics in the report. Finally, the justification defense can never be successful where the criminal activity is intended to express disagreement with a decision made by the legislative or executive branch of government, which is just what this case is about.; 2. Although Dr. Joseph sat at the conference table with some of the defendants, the "contention that [he] consented to the meeting defies any credible evaluation of the evidence." He merely tried, and succeeded for a short time, to quiet the group. Some defendants also claim that because Dr. Joseph's office is in a public building there can be no criminal trespass. This is not the law. Further, Dr. Joseph's office is located in a private section of the building.; 3. The motion for dismissal in furtherance of justice is denied without comment.

[102]. Franco v. Kuffner, 543 N.Y.S.2d 753 (1989).: FACTS: Franco and a co-defendant were charged with second degree burglary. Franco alleges that he is not guilty of the burglary and that his co-defendant is willing to testify to this. In order not to jeopardize himself, however, the co-defendant can only testify on behalf of Franco if they have separate trials. Franco's request for separate trials was denied.; The court's ruling that there will not be separate trials is not appealable or reviewable until the termination of the trial. However, Franco claims that because he has AIDS, the circumstances are "sufficiently compelling and extraordinary" that the appellate court should review the trial court's decision before the trial has begun, and should prohibit the trial court judge from taking any further action on the case.; ISSUE: Is the fact that a defendant has AIDS a sufficient reason to allow early review of the trial court's rulings and to prohibit the trial judge from taking further action?; HOLDING: The fact that the defendant has AIDS is not a sufficient reason to allow early review or to prohibit the trial judge from taking further action.; REASONING: The court held that the defendant has asked for relief which is not available. The appellate court cannot prohibit the trial court judge from taking further action in a pending criminal case "no matter how egregious" the trial court judge's errors may be. The defendant has failed to demonstrate that his rights "could not otherwise be safeguarded" through an appeal at the termination of the trial. The court does not mention AIDS or the defendant's prognosis or current medical status in its two-paragraph opinion.

[103]. Allen v. Tacoma, no. 89-2-09067-3, Super. Ct. Wash., February 16, 1990. Source: A.C.L.U.: FACTS: A Superior Court judge in Washington has ruled that a needle- exchange program run by physicians and police officers does not violate the laws preventing the possession of hypodermic instruments.

[104]. Wisconsin v. Carlson, No. 89-1620-CR, Wis.. of App., 2nd Dist., AIDS Litigation Reporter 7/27/90.: FACTS: An appellate court has affirmed a lower court's decision regarding a man who killed his homosexual lover because he believed that the lover had given him AIDS.; The defendant had entered a request to withdraw a guilty plea based on the claim that he had received ineffective legal counsel. The defendant, who sent a written confession to the judge before his hearing, acted against the advice of his attorney. The appellate court held that the defendant's lack of effective counsel was of his own doing. Therefore the appellate court denied the defendant's request to withdraw his guilty plea.

[105]. Brown v. Latella, N.Y. Sup. Ct., Bronx Cty., AIDS Policy and Law 5/17/89.: FACTS: The plaintiff, a New York Transit police officer, was frisking Torres when the plaintiff received a needlestick from a syringe in Torres' pocket. Torres orally agreed to submit to an HIV test after he was arraigned in Criminal Court.; The New York City Health & Hospitals Corp. (HHC) refused to perform the test on the blood sample based on Public Health Law which requires formal written consent to an HIV blood test.; Brown then asked the court to compel HHC to perform the test. The court intended to take testimony to determine what had transpired when the oral consent was given. Torres was later apprehended and he furnished the written consent necessary for the blood test. However, this was agreed to only in exchange for a reduction in Torres' charge from felony to the misdemeanor of disorderly conduct. Both parties then agreed to dismiss the proceedings that Brown brought.; New York Supreme Court Justice Shapiro entered an opinion calling for reconsideration of the law that shaped the events of this case. Justice Shapiro argued that this law allowed criminals to blackmail prosecutors for lesser charges in exchange for consenting to HIV testing. Therefore, the Justice has urged that this law be amended so as to avoid this problem.

[106]. ACT UP v. Bagley, no. 89-987-MA, U.S. Dist. Ct., Dist. Ore. Source: A.C.L.U. (Complaint filed September 18, 1989).: FACTS: The plaintiffs are members of ACT UP, an organization devoted to securing and protecting the rights of persons with AIDS. The defendant is a United States Marshall. At a demonstration at a federal building, over one hundred demonstrators marched and chanted, protesting FDA policies and delays in drug approvals. Twelve were arrested, eleven of them charged with creating a noisy disturbance at a federal building, and nonviolent civil disobedience.; The plaintiffs allege that while they were in custody of the U.S. Marshall, ten of them were strip searched, several in front of other officers. They allege that the search included an examination of breasts, genitals and anuses. They were then fined $50 each; they paid and were released. The plaintiffs have filed a complaint in district court.; ISSUES: 1. Did the strip search violate the plaintiffs' constitutional right to privacy?; 2. Did the strip search violate the plaintiffs' constitutional right to be free from unreasonable searches?; STATUS: This case is awaiting trial.

[107]. South Carolina v. Edson, No. 89-GS-403065, Ct. of Gen. Sessions, AIDS Litigation Reporter 7/28/89.: FACTS: A grand jury has indicted a state social services worker for failing to report the abuse of an eight-year-old boy who died in November 1988 after suffering from AIDS.; The boy's mother claimed that he had been sexually abused and the social worker failed to report this to the police. The social worker took no action on the mother's claim for at least eight months. By this time the child was dying of AIDS, making a criminal investigation of the mother's claim difficult.; Prosecutors of the case are uncertain whether the alleged sexual abuse of the boy led to his contraction of AIDS.; STATUS: This case is pending.

[108]. Tacoma-Pierce Cty. Dir. of Health v. Tacoma, No. 89-2-09067- 3, Pierce Cty., Wash. Super. Ct., AIDS Policy and Law 11/15/89.: FACTS: The Health Department of Tacoma-Pierce County has filed a lawsuit against the City of Tacoma, challenging the State Attorney General's opinion that needle-exchange projects violate state law.; The Health Department had been operating a program in which drug abusers could exchange their dirty needles for clean ones, thereby reducing the risk of spreading AIDS. After the Attorney General announced that such programs violate state drug laws, the City of Tacoma stopped funding the Health Department's program.; The plaintiff argues that needle exchange programs are legal under Washington's omnibus AIDS law, which authorizes health officials to prevent the spread of AIDS.; STATUS: This case is pending.

V. STATE REGULATION OF PUBLIC PLACES

A. Bathhouses

[109]. Marsoner v. Pima Cty., 1990 Ariz. App. Lexis 57, Ct. of App. Ariz., Feb. 27, 1990. [V.B.; V.C.]; 1991 WL 339 (Ariz. 1991).: FACTS: The Pima County Board of Supervisors amended the Pima County Health and Safety Code in 1988 by adding a comprehensive regulatory ordinance for adult amusement establishments. These include bathhouses, peep shows, and other sexually-oriented businesses. The regulations include requirements for operating permits, unannounced inspections, and sanitary codes, and they carry penalties up to those of a class two misdemeanor. The Board stated that the purpose of the new ordinance is to prevent the transmission of HIV. The owners of fourteen such business establishments filed an action, claiming that the Board has no authority to pass the ordinance.; ISSUE: Does the Pima County Board of Supervisors have the authority under Arizona law to enact a regulatory ordinance for adult amusement establishments?; HOLDING: A county board has no authority to enact a regulatory ordinance for adult amusement establishments.; REASONING: Counties are created by state legislatures, and county boards have only the authority expressly granted to them. No statute expressly authorizes the enactment of a regulatory scheme for adult businesses. The Board does have the authority to "adopt provisions necessary to preserve the health of the county" and to "make and enforce all... sanitary...regulations not in conflict with general law." However, the court found that the ordinance enacted by the Board required specific authority not provided by these statutes. Therefore, the ordinance is invalid.; STATUS: Reversal: The Arizona Supreme Court reversed the court of Appeals and held that the ordinance is constitutional.

[110]. California v. Hollywood Spa Inc., No. BC004576;

[111]. California v. Saubring Corp., No. BC004577;

[112]. California v. PI-AQUA Inc., No. BC004578; Cal. Super. Ct., Los Angeles Cty., AIDS Litigation Reporter 7/27/90.: FACTS: The Los Angeles district attorney has filed three lawsuits against area bathhouses in an attempt to shut them down to help prevent the spread of AIDS.; The U.S. Center for Disease Control has recognized that the sexual activity that often occurs in gay bathhouses contributes to the spread of AIDS. After investigating the bathhouses involved, the district attorney has compiled evidence indicating that dangerous sexual practices occur in these bathhouses.; The district attorney seeks to declare these bathhouses public nuisances and shut them down. He also asks the court to charge the bathhouse operators $2,500 in civil penalties for each violation of the Business and Professional Code and to enjoin the bathhouses from operating permanently.

[113]. Club San Diego v. San Diego, No. 598746, Cal. Super. Ct., San Diego Cty., (Complaint filed 5/2/88).: FACTS: The plaintiffs are owners of various bathhouses where membership is required to use the private club facilities. They challenge a city ordinance that regulates bathhouses and requires licenses to operate bathhouses. The plaintiffs ask that an injunction be granted to prevent enforcement of the ordinance.; ISSUES: 1. Does the ordinance violate the plaintiff organization members' constitutional right to free association as provided in the U.S. and California Constitutions?; 2. Does the ordinance violate these private clubs' right to privacy as provided in the California Constitution?; 3. Has the city randomly selected only the plaintiffs for enforcement of the ordinance, in violation of the plaintiffs' rights to equal protection as provided in the U.S. and California Constitutions?; STATUS: This case is pending.

B. Adult Book Stores/Video Stores

[114]. Bamon Corp. v. Dayton, 923 F.2d 470 (6th Cir. 1991).: FACTS: The plaintiff corporation owns and operates McCook Theatre which sells adult books, magazines, and videos as well as exhibiting videos, motion picture films, and live entertainment. The plaintiff's premises have viewing booths that are totally enclosed with a full length door that can be locked from the inside.; The Dayton City Commission passed an ordinance regulating the design and occupancy of video booths which are used to exhibit material depicting certain enumerated sexual acts and bodily functions. Some of the requirements of the ordinance are that the video booths be visible, well-illuminated and not obscured by any curtain, door, or other enclosure. Additionally, the booths are to be occupied by no more than one patron at a time.; The plaintiff claims that this ordinance is unconstitutional and asks that it be permanently enjoined from enforcement.; ISSUES: 1. Is the Dayton ordinance based upon both the content of the entertainment and the impact of that content upon the viewer which is presumptively unconstitutional?; 2. Was the Dayton City Commission pursuing a significant governmental interest by enacting this ordinance?; 3. Was the ordinance narrowly tailored to the government goal of reducing the spread of sexually transmitted diseases, such as AIDS?; 4. Do the plaintiff's customers have a privacy right to view these videos in seclusion?; HOLDING: 1. The city ordinance is content-neutral and is therefore not presumptively unconstitutional.; 2. The government was pursuing the legitimate goal of reducing the spread of sexually transmitted diseases.; 3. The ordinance was narrowly tailored to meet the government's legitimate goal.; 4. The plaintiff's customers do not have a right of privacy to view these videos in seclusion.; REASONING: 1. The Dayton ordinance was not adopted to regulate speech or the message that is conveyed. This ordinance is justified without reference to the content of the video booths that it regulates because of the legitimate health concerns.; 2. The ordinance was aimed at eliminating sexual activity that has been found to occur in these closed video booths; the sexual activity going on in these booths has been found to contribute to the epidemic spread of sexually transmitted diseases, including AIDS. Eliminating the spread of disease is an important governmental interest.; 3. The ordinance is narrowly tailored to the government goal of reducing the spread of disease because this interest could not be achieved more effectively absent the regulation. The means chosen by the Dayton City Commission is not broader than necessary to achieve the government's interest.; 4. Though the plaintiff's customers have a constitutional right to watch explicit movies in the privacy of their own homes, this does not extend to include a similar right to watch the movies in a public place. Therefore, the patrons do not have a constitutionally protected privacy right to view these videos in seclusion.

[115]. Doe v. Minneapolis, 898 F.2d 612 (8th Cir. 1990).: FACTS: The plaintiffs, two customers and an owner of adult book and video stores in Minneapolis, challenged the constitutionality of a Minneapolis city ordinance requiring that doors be removed from viewing booths in adult bookstores. The ordinance was designed to diminish high risk sexual activity that takes place in these booths and thus help to prevent the spread of AIDS. The plaintiffs argue that the ordinance violates their constitutional rights.; ISSUES: 1. Does the ordinance violate the two customers' constitutional rights to view this type of entertainment?; 2. Does the ordinance violate the privacy rights of the two customers?; 3. Does the ordinance violate the owner's first amendment right to exhibit motion picture films by depriving him of the only profitable means to operate this business?; HOLDING: 1. The city ordinance does not violate the customers' constitutional rights to view this type of entertainment.; 2. The city ordinance does not violate the customers' privacy rights.; 3. The city ordinance does not prevent the owner from exercising his first amendment right to exhibit these motion pictures.; REASONING: 1. For the city ordinance to be constitutional it must be shown that it: 1) is content-neutral as to the sexually explicit material, 2) serves a significant governmental interest by aiming to reduce the spread of AIDS, 3) leaves an alternative channel of communication of the sexually explicit material, and 4) is narrowly tailored to serve the governmental purpose. Neither party disputed that the city ordinance was content-neutral. Based on evidence showing that high-risk sexual activity took place in the booths of adult bookstores, it was shown that the ordinance serves the valid governmental purpose of reducing the spread of AIDS. The ordinance is narrowly tailored to meet this objective. Finally, alternative channels of communication of sexually explicit material remain open. Patrons may still view the films in the open booths or rent the films to watch at home. Thus, the city ordinance does not violate the customers' first amendment rights to view this type of entertainment.; 2. A privacy right to the seclusion of a closed booth does not fall into the traditional area of home and family in which privacy rights have been recognized. Patrons have no right to view such entertainment in private within a commercial establishment. Because a privacy right does not exist for these customers, no constitutional violation has occurred.; 3. The city ordinance does not prohibit adult bookstore owners from exercising their first amendment rights to exhibit sexually explicit movies. The owners are still free to show these movies. Although the city ordinance may cause economic hardships for the owners of such stores, a first amendment inquiry is not concerned with economic impact. The first amendment grants the owners the right to display the videos and dancers, but does not guarantee the right to make a profit.; Update since the AIDS Litigation Project I:; The AIDS Litigation Project I reported the decision of this case by the United States District Court for the District of Minnesota. Since that time, the plaintiffs appealed the district court's decision. The U.S. Ct. of Appeals for the 8th Circuit affirms the order of the district court.

[116]. Ellwest Stereo Theater v. Boner, 718 F. Supp. 1553 (M.D. Tenn. 1989).: FACTS: The plaintiffs filed suit against the mayor of Metropolitan Nashville and the Metropolitan Government of Nashville (Metro) challenging the constitutionality of a city ordinance that regulates adult-oriented establishments. The ordinance was passed after an investigation revealed that many adult-oriented establishments catered to illicit sexual activity. This, along with unsanitary conditions, posed health risks of spreading sexually transmitted diseases such as AIDS. The ordinance required adult-oriented establishments to obtain a license from Metro and that employees of these establishments obtain a permit. The ordinance also required that the entire interior where adult entertainment is provided, be illuminated, unobstructed, and visible from the common area of premises.; ISSUES: 1. Are the disclosure requirements for obtaining a license to operate or maintain an adult-oriented establishment unconstitutional?; 2. Are the investigation requirements for obtaining a license to operate or maintain an adult-oriented establishment unconstitutional?; 3. Is the requirement that entertainers and employees of adult-oriented establishments obtain a permit unconstitutional?; 4. Are the license and permit fees that are required by the ordinance unconstitutional?; 5. Are the renewal provisions of the ordinance unconstitutional?; 6. Are the license and permit revocation and suspension procedures unconstitutional?; 7. Is the hours of operation requirement limiting the hours of operation to between 8:00 a.m. and 3:00 a.m. on weekdays and Saturdays and 12 noon to 3:00 a.m. on Sundays unconstitutional?; 8. Is the requirement that licensees be responsible for their employees' conduct while they are on the licensed premises unconstitutional?; 9. Is the requirement prohibiting nude entertainment unconstitutional?; 10. Are the review procedures for denial of a license lacking the minimum standards for procedural due process?; 11. Are the miscellaneous provisions, including the definition of an adult bookstore, unconstitutionally vague and overbroad?; 12. Is the ordinance unconstitutional in its entirety?; HOLDING: 1. Only those persons operating and managing adult-oriented establishments must provide information to obtain a license. Additionally, only the name and address of the applicant, proof of age, name of business and proposed location, and statement of familiarity and compliance with the ordinance are required to obtain a license.; 2. Only the requirement that the Health Department inspect the premises is rationally related to the stated purpose of the ordinance. Additionally, the requirement that applicants who have been convicted of a felony or any crime of a sexual nature be denied a license is unconstitutional.; 3. The requirement that all employees of adult-oriented establishments obtain permits is overbroad and is therefore unconstitutional. Requiring employees who seek to obtain permits to disclose information beyond their name, address, proof of age, statement that applicant is familiar with the ordinance, and whether the applicant has ever had a permit revoked before and if so, why, is unconstitutional. However, providing information regarding height, weight, hair and eye color, as well as photographs so that the employee can be identified as being the person to whom the permit is issued, is constitutional.; 4. A license and permit fee that merely covers the expense of issuing licenses is constitutional. However, the $500 fee that Metro charges is excessive because it includes the cost of the Police Department and Fire Department inspections which are not reasonably related to the purposes of this ordinance.; 5. The renewal provisions are unconstitutional restraints on the plaintiffs' first amendment rights.; 6. Revocation procedures based on providing misleading information in the application is overbroad to the extent that much of the application procedure has been found unconstitutional. Revocation of a license or permit for failing to maintain records of employees is overbroad to the extent that the ordinance's definition of employee is overbroad. Failure to re-issue a license or permit for five years after a violation of the ordinance is not unconstitutional. The provision allowing suspension of licenses in case of a threat to public health or safety is constitutional.; 8. Unlimited inspections of commercial establishments open to the public do not violate the fourth amendment of the Constitution.; 9. Making the licensee responsible for the conduct of employees while they are on licensed premises is constitutional and appropriate in these circumstances. Also, the requirement that the entire interior portion where adult entertainment takes place be illuminated and visible to the common area is constitutional. Finally, the section of the ordinance which prohibits operators and employees of adult-oriented establishments from permitting any kind of sexual activity to take place on the premises is clearly constitutional.; 10. Prohibiting nude entertainment is an unconstitutional restraint, violating the first and the fourteenth amendment to the Constitution.; 11. The miscellaneous provisions, including the definition of the term adult bookstore, are vague and over-broad.; 12. The ordinance is enjoined from being implemented.; REASONING: 1. Only those regulations narrowly tailored to serve substantial and legitimate government interests without unnecessarily infringing upon fundamental first amendments interests will withstand constitutional scrutiny. A rational relationship must exist between the substantial government interest of preventing the spread of diseases, such as AIDS, and the specific provisions of the ordinance. Requiring those owners who have no responsibilities regarding the day to day operations of adult-oriented establishment to apply for a license has no relationship to the prevention of the spread of disease. Requiring applicants to supply personal information irrelevant to the prevention of the spread of disease also has no rational relationship with the purposes of the ordinance.; 2. Because inspections by the Code Administration and the Fire Department have no rational relationship with the prevention of the spread of disease, requiring these inspections is unconstitutional. Denying a license to a person because of that person's criminal past is unconstitutional because it doesn't bear on that individual's qualifications to run an adult-oriented establishment in a safe and healthy manner.; 3. The requirement that employees of adult-oriented establishments obtain permits is overbroad because its language would require all employees, including repairmen and contractors, to obtain permits. Requiring disclosure of personal information beyond identification is unrelated to the prevention of the spread of disease. Whether the employee has ever had a permit revoked is relevant to the prevention of the spread of disease because an employee who has had a permit revoked for engaging in impermissible sexual activity is clearly more likely to engage in such contact again and thereby contribute to the spread of AIDS.; 4. Imposing a license fee on the exercise of a first amendment right such as showing and viewing adult entertainment can be as potent as censorship unless the fee is nominal, covering expenses of the licensing system only. However, the $500 fee that Metro would like to impose includes the costs of inspection services by the Fire Department which the court has found to be unconstitutional. Therefore, the $500 is more than what is needed to cover costs.; 5. Because the sections governing renewal of licenses grants the Health Department the unlimited right to compel disclosure of any and all information the Health Department chooses, those sections are unconstitutional restraints on the plaintiff's first amendment rights.; 6. The sections governing revocations of permits is based on an applicant providing false information on an application. Because many of the disclosures that the ordinance requires are overbroad, basing a revocation decision on this application procedure is overbroad as well. Revocation of a license for five years serves a deterrent function and prevents the recurrence of conduct which could lead to the transmission of AIDS and other sexually transmitted diseases. The ordinance's provision which allows the suspension of a license in case of a threat to the public health or safety is constitutional because the Health Department already has the power to do just that.; 7. Limiting the hours of operation is not unconstitutional because it still provides plenty of time in which to operate. It's also justified by the difficulty of policing and enforcing the ordinance at late hours.; 8. Unlimited inspections of commercial establishments that are open to the public do not violate the Constitution if these inspections are limited to the premises that are open to the public.; 9. Vicarious liability of the licensee for the conduct of the employees while they are on licensed premises is appropriate in these circumstances. Requiring the adult-oriented establishments to illuminate and physically arrange the premises so that all areas are visible to the common area is also reasonably related to the purposes of the ordinance. Making the entertainment-viewing area visible will cut back on the illicit sexual activity and thereby help prevent the spread of disease. Prohibiting workers from allowing sexual activity of any kind clearly is related to the purpose of preventing the spread of sexually transmitted diseases.; 10. Prohibiting nude entertainment has only vague connections to the purpose of the ordinance. "It is the sexual act, not the nude performance, which must be prevented in these establishments to prevent the spread of sexually transmitted diseases." Therefore, banning nude performances is an unnecessary restriction of the plaintiffs' first amendment rights.; 11. By the Health Department's own testimony it is clear that the ordinance's definition of adult bookstore is vague and uncertain. If definitions and provisions are unclear, then the ordinance can not be implemented effectively and is therefore unconstitutional.; 12. Because so much of the ordinance has been declared unconstitutional, the remaining provisions would not be fully operative as law. Therefore, the ordinance cannot be enforced in its entirety.

VI. STATE REGULATION OF PRODUCTS, FRAUD, ETC.

[117]. Federal Trade Comm'n v. Feiler, No. CV-S-89-713-HDM (LRL), U.S. Dist. Ct., Dist. Nev., 57 Antitrust & Trade Reg. Report 475, 1989.: FACTS: Three individuals had claimed that an in-home AIDS test could detect the presence of the virus. The Federal Trade Commission brought charges of deceptive practices against these three who had falsely represented that the Food and Drug Administration had approved the test and that the Surgeon General had suggested that everyone in the United States should be tested for HIV. The test was merely a written lifestyle questionnaire.; The three defendants must pay $62,000 to distributors and consumers in consumer redress. They have also agreed not to make misrepresentations about AIDS testing.

[118]. Shackil v. Lederle Laboratories, 561 A.2d 511 (N.J. 1989).: FACTS: The plaintiffs are a child and her parents. They claim that the combined diphtheria-pertussis-tetanus vaccine caused the child to suffer damages, including chronic encephalopathy and severe mental retardation. They sued the manufacturers of the vaccine, claiming negligence, breach of warranty, misrepresentation and strict liability.; ISSUE: Should New Jersey adopt "market share liability" such that the manufacturer bears the burden of proof that it did not cause the injury?; HOLDING: New Jersey will not adopt market share liability in the specific context of vaccines, but may be open to it in an appropriate context.; REASONING: The court's long, deliberate and considered opinion analyzes each consequence of adopting a market share liability theory. One of these is that the liability might chill manufacturers' desires to develop and market new products. The court expressed concern that there might be a negative effect on "other experimental drugs, such as a vaccine against the spread of acquired immune deficiency syndrome." The court also directed the reader to a law review article concerned with product liability law and its effect on possible HIV vaccines. (55 U.Chi.L.Rev. 943 n.4 1988).

[119]. University Hosp. Laboratory v. Sullivan, No. 90-0560, U.S. Dist. Ct., Dist. D.C., AIDS Litigation Reporter 5/11/90.: FACTS: A settlement was reached between the plaintiff, a pharmaceutical company, and the defendant, the Food and Drug Administration (FDA). The FDA has agreed to decide within 120 days whether the plaintiff can market a home testing kit for HIV.; The kit contains sterile instruments to collect blood through a finger prick. The blood is then sent to the manufacturer's testing laboratory where it is anonymously tested.; In March of 1988 the FDA began notifying home blood testing kit applicants that they would not be approved unless the kits were intended for professional use only. On April 25, 1990, the FDA announced that it would begin accepting applications for approval of home HIV testing kits.

[120]. Burroughs Wellcome v. Prothrow-Stith, No. 89-1569, U.S. Dist. Ct., Dist. Mass., AIDS Litigation Reporter 8/11/89.: FACTS: A federal district court judge has issued a temporary restraining order barring the release of a protocol designed to test AZT's effectiveness on infants. Massachusetts drug testing laws make information such as this public.; The Boston branch of the activist group AIDS Coalition to Unleash Power (ACT UP) had requested the protocol information from the health commissioner because ACT UP alleges that testing uninfected infants with the toxic drug AZT could pose unnecessary health risks.; STATUS: This temporary restraining order will remain in effect until the plaintiff's request for a preliminary injunction can be heard.

[121]. Lyphomed v. Professional Compounding Ctrs., No. 14-89-1792, U.S. Dist. Ct., S. Dist. Tex., AIDS Litigation Reporter 6/23/89.: FACTS: The plaintiff has filed suit against the defendant Professional Compounding Centers (PCC) alleging that PCC has distributed the drug pentamidine without authorization. The plaintiff claims that they, Lymphomed, are the only pharmaceutical firm that has received Food and Drug Administration approval to market the drug. The plaintiff alleges that PCC sells raw pentamidine in bulk form to pharmacists who then compound it for sale to AIDS patients. The plaintiff argues that these pharmacists do not have the equipment needed to remove the impurities of raw pentamidine, and could produce unsafe products, posing serious danger to those receiving the drug. The PCC does not properly instruct these pharmacists on the correct way of compounding the drug, the plaintiff contends.; The plaintiff has been granted a preliminary injunction and the PCC has been ordered to halt the sale of raw pentamidine in bulk form.; STATUS: This case is pending.

[122]. New Jersey v. Central Diagnostic Laboratories, W-038366-88, N.J. Super. Ct., Middlesex Cty., AIDS Litigation Reporter 5/26/89.: FACTS: The New Jersey Department of Health has permanently closed the Central Diagnostic Laboratories (CDL) based on findings of an administrative law judge. The judge found that CDL was guilty of violating at least nine state health regulations, such as altering test results, performing tests without facility authorization, and failing to produce records that claimed tests had been performed. These violations were continuous, blatant, and intentional. The CDL faces criminal and civil charges that it dumped as many as 2,000 vials of untreated blood, some of which was HIV-positive.; Update since the AIDS Litigation Project I:; The temporary closing of the CDL was reported in the AIDS Litigation Project I. Since that time CDL has been closed permanently. The parties await trial.

VII. PRIVATE TORT ACTIONS

A. Negligence

[123]. AIDS Counseling & Testing Ctrs. v. Group W T.V., No. 89- 1492, U.S. Ct. of Appeals, 4th Cir., 1990 U.S. App. LEXIS 8318, 17 Media L. Rep. 1893, May 22, 1990.: FACTS: The plaintiffs are a business venture (ACT) and its investors. The plaintiffs seek to establish a profit-making enterprise by providing HIV testing to the public. They have advertised the business as a faster, easier alternative to the free HIV testing provided by public agencies. They provide a written copy of test results rather than the oral report provided at many other testing centers. Additionally, they provide an I.D. card to those customers who have tested negative for HIV as documentation.; A Baltimore television station broadcasted some news stories that were critical of ACT's operations. In the broadcasts, the reporter made several incorrect statements, such as that ACT would sell I.D. cards certifying the test results of those individuals who had tested negative for HIV. Actually, ACT's practice was to "give" the card to those who had paid ACT's fifty dollar fee for the test if the test turned out to be negative for HIV.; Stuart Caplan, a member of the Baltimore County AIDS Task Force, wrote several letters to different state agencies criticizing ACT's operations. He had also spoken with and written to an employee of the television station before the broadcasts were aired.; In one of the later broadcasts Caplan was interviewed. He expressed concern over ACT's practice of supplying the I.D. cards because they could create the erroneous belief that an individual was free of the AIDS virus. Neither broadcast ever mentioned the investors of ACT in any way.; The plaintiffs filed suit alleging defamation and false-light invasion of privacy against the television station and Caplan.; ISSUES: 1. Should summary judgment have been granted to defendant Group W?; 2. Should the claims of the individual plaintiffs, ACT's investors, have been dismissed?; HOLDING: 1. Summary judgment was correctly granted to Group W because of the immateriality of the defendant's false statements.; 2. The claims of the individual plaintiffs, ACT's investors, were correctly dismissed because no mention of the investors had ever been made in the allegedly defamatory remarks.; REASONING: 1. The court determined that the errors in Group W's broadcasts were immaterial and therefore not defamatory. The false statements did not cause the story to have a different effect than had the truth of the matter been spoken. ACT's actual practices, such as giving out the I.D. cards for negative HIV testers, are still subject to criticism. Because there was no defamation, summary judgment was correctly granted to defendants.; 2. As to the claims of the individual plaintiffs, no one ever mentioned the investors in the allegedly defamatory remarks. For a claim of defamation to arise, a publication must refer to the individual who seeks to sue. Defamatory statements which refer to an organization do not implicate individual members such as investors. Therefore, the court found that no defamatory statements were made as to the individual plaintiffs and their complaints were dismissed.

[124]. Sweeney v. Presbyterian/Columbia Presbyterian Medical Center, No. 89 Civ. 0734 (WK), U.S. Dist. Ct., S. Dist. N.Y., 1990 U.S. Dist. LEXIS 7562, June 20, 1990.: FACTS: The plaintiff's husband Sweeney had triple bypass heart surgery. Before the surgery the doctor discussed the risks involved. The doctor failed to mention AIDS as a risk of the blood transfusion; he also failed to mention that Sweeney could use his own blood or that of a friend or family member, if obtained in advance, which would reduce or eliminate the risk of AIDS.; After Sweeney's surgery it was discovered that the donor of the blood had AIDS. Sweeney subsequently tested positive for HIV. Sweeney died several months later, AIDS being among the causes of death.; The plaintiff's complaint alleged that the defendant failed to obtain informed consent, and filed a wrongful death claim based on the informed consent claim.; ISSUE: Is this action time barred by New York's statute of limitations for medical malpractice claims?; lding:; This action is time barred by New York's statute of limitations for medical malpractice claims.; REASONING: The statute of limitations is for two years and six months from the date of the last treatment in the course of continuous treatment. In the course of continuous treatment for Sweeney's heart condition, his last follow-up visit was well beyond the statute of limitations. The plaintiff's last date of treatment was not when he first had his blood taken to test for HIV as the plaintiff argues. Therefore, this action is time barred.

[125]. Doyle v. Home Office Reference Laboratory, No. 89-243 ERIE, U.S. Dist. Ct., W. Dist. Pa., 1990 U.S. Dist. LEXIS 5850, February 6, 1990.: FACTS: The plaintiff applied for life insurance with New York Life Insurance Co. (NYLIC). During the application process the plaintiff's blood was tested for HIV. NYLIC sent the plaintiff's blood to the defendant for testing.; The defendant reported that the plaintiff had tested positive for HIV. After receiving these results, the plaintiff contacted his own physician and was again tested for HIV. The results of this second test determined that the plaintiff was HIV-negative.; ISSUES: 1. Did the defendant negligently inflict emotional distress?; 2. Is physical injury required for a claim of negligent infliction of emotional distress?; 3. Should the plaintiff be allowed to amend his complaint so as to show physical injury for his claim of negligent infliction of emotional distress?; 4. Did the defendant intentionally inflict emotional distress?; 5. Does the defendant laboratory have a duty to the patient to reasonably perform the HIV test?; 6. Did the defendant breach its duty to reasonably perform the HIV test?; 7. Was the plaintiff defamed by the defendant?; 8. Did the defendant invade plaintiff's privacy?; 9. Did the defendant breach a contract with the plaintiff?; HOLDING: 1. The court did not determine whether the defendant negligently inflicted emotional distress.; 2. Physical injury is a required element for a successful claim of negligent infliction of emotional distress.; 3. The plaintiff is allowed to amend Count I of his complaint to demonstrate physical injury.; 4. The defendant did not intentionally inflict emotional distress.; 5. The defendant laboratory has a duty to the patient to reasonably perform the HIV test.; 6. The court did not determine whether the defendant breached its duty to reasonably perform the HIV test.; 7. The defendant did not defame the plaintiff.; 8. The defendant did not invade the plaintiff's privacy.; 9. The defendant did not breach a contract with the plaintiff.; REASONING: 1. The court did not determine whether the defendant negligently inflicted emotional distress.; 2. The court, in requiring an assertion of physical injury in an emotional distress case, was following the Restatement 2d of Torts, and various precedent-setting cases which require that the physical injury be greater than that of a transitory, non-recurring nature.; 3. The court allowed the plaintiff to amend his complaint to assert physical injury. The amendment did not prejudice the defendant. The extent of physical injury is a matter more properly decided on a motion for summary judgment.; 4. The court did not find an intentional infliction of emotional distress because defendant's conduct in sending incorrect blood test results to a customer was not extreme and outrageous. "We find nothing atrocious [or] utterly intolerable . . . about a blood-testing company sending incorrect results to a customer, as there would be nothing atrocious about sending a correct test result to a customer."; 5. The laboratory that performs HIV tests does have a duty to the patient to perform the tests in a reasonable manner. Otherwise the plaintiff would have no recourse to bring suit against the physician or the insurance company, because they have created no duty by conveying the false information. Liability should be based on foreseeability and placed where the negligence occurs.; 6. The issue of whether defendant breached its duty to reasonably perform the HIV test is one more properly decided at the time of motions for summary judgment.; 7. The plaintiff's claim of defamation is barred by the state's statute of limitations.; 8. The plaintiff's claim of invasion of privacy is also barred by the state's statute of limitations.; 9. There is no breach of contract between the plaintiff and the defendant because no contract exists between the plaintiff and the defendant. Therefore, there is no breach of contract between plaintiff and defendant.

[126]. Doe v. Equifax Servs., No. 88-3872, U.S. Dist. Ct., E. Dist. Pa., 1989 U.S. Dist. LEXIS 5997, May 26, 1989.: FACTS: The plaintiff sought to purchase life insurance from the defendant Geico Annuity Insurance Company (Geico). In order to do so, he submitted to a physical examination conducted by the defendant Equifax Services, Inc. (Equifax). The plaintiff authorized an ECG, a urinalysis, and a twelve-hour blood profile. The defendant Home Office Reference Laboratory (the Lab) tested the plaintiff's blood for the HIV antibody without the plaintiff's permission. The results were positive and the Lab sent these results to an information bureau for insurance companies. The plaintiff seeks compensatory damages, punitive damages, and counsel fees from Equifax, the Lab, and Geico.; ISSUES: 1. Should the plaintiff's claim against Equifax for invasion of privacy be dismissed?; 2. Should the plaintiff's claim against Equifax for battery be dismissed?; 3. Should the plaintiff's claim against Equifax for breach of contract be dismissed?; 4. Should the plaintiff's claim against Equifax for breach of duty to deal in good faith be dismissed?; 5. Should the plaintiff's claim against Equifax for negligence be dismissed?; 6. Should the plaintiff's claim against Equifax for negligent infliction of emotional distress be dismissed?; 7. Should the plaintiff's claim against Equifax for intentional infliction of emotional distress be dismissed?; HOLDING: 1. The plaintiff's claim for invasion of privacy by Equifax should be dismissed.; 2. The plaintiff's claim of battery should not be dismissed.; 3. Equifax's motion to dismiss the plaintiff's claim of breach of contract is granted.; 4. Equifax's motion to dismiss the plaintiff's claim of breach of duty to deal in good faith is granted.; 5. Equifax's motion to dismiss the plaintiff's claim of negligence is denied.; 6. Equifax's motion to dismiss the plaintiff's claim of negligent infliction of emotional distress is denied.; 7. Equifax's motion to dismiss the plaintiff's claim of intentional infliction of emotional distress is granted.; REASONING: 1. The plaintiff's claim that Equifax invaded his privacy by testing his blood for HIV is barred by the Pennsylvania statute of limitations.; 2. Equifax's motion to dismiss the plaintiff's claim of battery is denied because the plaintiff clearly alleges that Equifax exceeded the consent given by the plaintiff. The plaintiff argues that had he known his blood would be tested for HIV, he would not have consented to the blood test. Therefore, there was a lack of informed consent and a claim for battery under general tort law is stated.; 3. The court does not believe that the plaintiff can state a claim for breach of contract. There is no actual expressed contract, quasi-contract, or contract implied in fact between the plaintiff and Equifax.; 4. The Pennsylvania courts do not recognize a cause of action for failure to deal in good faith as the plaintiff claims. Although the Uniform Commercial Code as adopted in Pennsylvania imposes a duty to deal in good faith, this only applies to merchants or those in a commercial setting whereas Equifax was clearly providing a service.; 5. Equifax does owe the plaintiff the general duty to avoid causing him harm. The plaintiff alleges that Equifax has breached that duty, causing him harm that was foreseeable to Equifax. Therefore, the plaintiff's claim of negligence will not be dismissed.; 6. Pennsylvania law is unclear as to whether a claim for negligent infliction of emotional distress must also allege physical injury. Because it is possible that the plaintiff could maintain an action for negligent infliction of emotional distress without alleging physical injury, this claim will not be dismissed although it fails to allege any physical injury.; 7. Pennsylvania law requires that an action for intentional infliction of emotional distress be accompanied by credible medical evidence. The plaintiff failed to produce any medical evidence to support his claim of intentional infliction of emotional distress. Therefore, this claim is dismissed.; STATUS: The case will be litigated as to the remaining claims.

[127]. Doe v. United States, No. 86-0179-T, U.S. Dist. Ct., R.I., 1990 U.S. Dist. LEXIS 5951, May 9, 1990.: FACTS: When five years old, the plaintiff underwent a tonsillectomy at the Newport Naval Hospital. The plaintiff argues that the navy surgeon was negligent in cauterizing and suturing the area of surgery. As a result, the plaintiff lost much blood; by the time the situation was rectified at Boston Children's Hospital the plaintiff had received fifty-four units of blood transfusions. As the plaintiff attempted to recover, he began to display an increased susceptibility to infections and eventually stopped growing. The plaintiff was tested for HIV and his test was positive. Since that time, the plaintiff's health has rapidly deteriorated; in March of 1989 he was diagnosed with AIDS.; ISSUES: 1. Was Dr. Busch, the naval surgeon, negligent in dealing with the plaintiff's postoperative bleeding?; 2. Were the injuries at issue proximately caused by the defendant's negligence?; 3. How should damages be measured, and what amount should be awarded?; HOLDING: 1. Dr. Busch, the naval surgeon, was negligent in dealing with the plaintiff's postoperative bleeding.; 2. The defendant's negligent act was a cause "in fact" of the plaintiff's injuries and the plaintiff's injuries were foreseeable; thus, the plaintiff's injuries were proximately caused by the defendant's negligent act.; 3. Medical expenses, lost earning capacity, personal injuries, pain and suffering were valued at $1,029,895 for John Doe, the plaintiff, and $246,229 for Jane Doe, the mother.; REASONING: 1. The repeated suturing and cauterization done by Dr. Busch was inconsistent with applicable standards of medical care. Dr. Busch used too thick a thread for the sutures, put too many holes in the tissue being stitched, and performed electrocauterization instead of a carotid artery ligation. This led to the plaintiff's excessive post-operative bleeding. Dr. Busch was therefore negligent in his treatment of the plaintiff.; 2. The plaintiff was able to establish that it is reasonably probable that his condition resulted from defendant's negligence. If the plaintiff had received adequate treatment during and after his tonsillectomy he would not have had the excessive post- operative bleeding and would not have required so many blood transfusions. Additionally, the defendant could have foreseen that AIDS was a possible risk of blood transfusions.; 3. Damages were measured so as to compensate the plaintiff for injuries sustained and, to the extent possible, to restore the plaintiff to the position he previously occupied.

[128]. Knight v. Dep't of the Army, SA 88 CA 874, U.S. Dist. Ct., W.Dist. Tex., 1991 WL 23006 (W.D. Tex.), 1/15/91.: FACTS: The plaintiff required coronary bypass surgery in 1984, and elected to have the surgery done in Texas at an Army Medical Center. During the surgery one of the blood transfusions given to the plaintiff contained the human immunodeficiency virus and the plaintiff subsequently seroconverted. The plaintiff claims that the physicians failed to warn him of this possibility and are therefore liable.; ISSUES: 1. Would a reasonable person refuse coronary bypass surgery if informed of the possibility of contracting HIV through transfused blood?; 2. Was the defendant negligent in not informing the plaintiff of the availability of autologous or directed-blood donation programs?; HOLDING: 1. A reasonable person would not refuse coronary bypass surgery, especially in Mr. Knight's urgent condition, if informed of the possibility of HIV transmission through transfused blood.; 2. The defendant was not negligent in failing to inform the plaintiff of autologous or directed-blood donation programs.; REASONING: 1. Because of the seriousness of Mr. Knight's heart condition, and although he testified that he would not have submitted to surgery had he known these risks, the court concluded a reasonable person would have undergone surgery. The evidence of HIV transmission through blood products in 1984 was merely a suspicion. Compared with the high probability of death from coronary disease, this strong suspicion of HIV transmission is not enough to prevent a reasonable person from choosing surgery.; 2. The plaintiff was not a candidate for autologous blood donation. Such a blood donation would have brought on cardiac arrest and was therefore not advised for someone in his condition. As for the directed-blood donation, the defendant would only have had a duty to inform the plaintiff of such an option if such a program existed at the facility where he had the coronary bypass. Furthermore, there was no way of establishing whether such a donation would have lowered the risk of the blood being contaminated. With no other evidence presented on this issue, the court found that the defendant had no such duty to inform the plaintiff.; STATUS: The court ruled in favor of the defendant.

[129]. Moore v. Armour Pharmaceutical Co., 129 F.R.D. 551 (N.D. Ga. 1990).: FACTS: The plaintiffs are hemophiliacs who brought suit against the defendants for supplying them with blood infected with HIV. The plaintiffs requested that doctors from the Centers for Disease Control (CDC) testify at their trial. The government sought a motion to quash these subpoenas.; ISSUE: Can the plaintiffs subpoena the testimony of doctors from the CDC?; HOLDING: The plaintiffs cannot subpoena the testimony of doctors from the CDC.; REASONING: Every government department and agency gets numerous requests for their employees to testify in private suits. To provide private litigants with testimony would take away from valuable government activity, such as the CDC's activity of publishing the results of AIDS research. Because the CDC's work is too important to interrupt with requests for testimonial appearances, the court denies these plaintiffs' subpoenas for the doctors' testimony.; STATUS: The original complaint will be litigated without the contested testimony.

[130]. Berner v. Caldwell, 543 So.2d 686 (Ala. 1989).: FACTS: The plaintiff alleged that her first and exclusive sexual partner infected her with genital herpes. She claimed he negligently or intentionally transmitted the virus to her, and she sued him for damages based on wantonness, willful misrepresentation, battery and assault, and negligence.; ISSUE: Did the trial court err in granting summary judgment to the defendant, who claimed that the plaintiff could not prove the elements of her claim?; HOLDING: The trial court erred in granting summary judgment to the defendant.; REASONING: Although the jury may disbelieve the plaintiff's evidence, it is not a foregone conclusion that she cannot prove her claim to the jury's satisfaction. Therefore, summary judgement was inappropriate.; The court noted that, although this case was concerned with genital herpes, liability for other sexually transmitted diseases also falls under traditional tort doctrines and damages are recoverable if the claim is proven. A footnote referred the reader to a law review article focussing on liability for the transmission of diseases and how that liability might apply to HIV. (18 Cum.L.Rev. 691-722, 1988).

[131]. Edwards v. Samaritan Health Servs., No. CV-87-35695, Ariz. Super. Ct., Maricopa Cty., AIDS Litigation Reporter 6/22/90.: FACTS: The plaintiffs are a child, Alex, and his parents. Alex contracted HIV from a transfusion he received at birth. The jury awarded the plaintiffs over $28 million for the defendant's negligence. The judge reduced the award to $26.9 million.; The jury found that the transfusion was given to Alex without his parents' consent and that the transfusion was improperly prepared. The parents testified that they had offered to give their own blood to Alex for an earlier transfusion.

[132]. Doe v. Massaysay, No. 85 L 13319, Ill. Cir. Ct., Cook Cty., AIDS Litigation Reporter 7/13/90.: FACTS: A man (John Doe) and his wife brought suit against Dr. Gonzalo Massaysay for causing John Doe to contract HIV and Hepatitis C as a result of Massaysay's medical negligence.; The Does allege that Massaysay negligently prescribed a drug to John Doe which caused pancreatitis. As a result of this condition, Doe required blood transfusions from which he contracted HIV and Hepatitis C.; The jury awarded John Doe $1.4 million, and Jane Doe $1 million for the loss of her husband's companionship and protection.

[133]. Bannow v. Michigan Dep't of Public Health, Nos. 88-62607-NZ, 88-12094-CM, Mich. Cir. Ct., AIDS Litigation Reporter 10/13/89.: FACTS: A judge has dismissed a tort suit brought against state and county public health departments because the suit is barred by governmental immunity.; The plaintiff was erroneously diagnosed as being HIV-positive by the health department. The departments had insisted that there was no chance that the results were incorrect and encouraged the plaintiff to prepare for his imminent death. The plaintiff terminated his college education and career plans. He later learned, after three tests, that he was HIV-negative.; Update since the AIDS Litigation Project I:; This complaint was reported in the AIDS Litigation Project I. Since that time the case has been dismissed.

[134]. C.A.U. v. R.L., 438 N.W.2d 441 (Minn. App. 1989).: FACTS: The plaintiff and defendant had been engaged to be married. They had a sexual relationship until May 1985. In March and April 1985, the defendant suffered a variety of ailments. In October 1985, he was hospitalized with pneumocystis carinii pneumonia. He was told he was HIV-positive but did not have AIDS. In December 1985, the defendant's doctor concluded he probably did have AIDS.; The plaintiff alleged that she asked the defendant in April 1985 if he had AIDS and he told her he did not. The defendant alleged that he had never heard of AIDS until Rock Hudson's illness was made public in July 1985. The defendant died one year after his diagnosis, and the plaintiff now tests HIV-positive. She claims that the defendant knew or should have known that he had AIDS prior to May 1985, and that he negligently transmitted HIV to her through sexual contact.; ISSUE: Did the trial court err in granting summary judgment to the defendant, based on the claim that the plaintiff could not prove her claim at trial?; HOLDING: The trial court did not err in granting summary judgment to the defendant, because the plaintiff could not prove her claim at trial.; REASONING: A person may be liable for the negligent transmission of a disease. However, the person must have been aware that he had the disease, or the facts must be such that he reasonably should have been aware. The person "is not expected to perceive what is not apparent."; A review of the medical knowledge available to the general public prior to May 1985 indicates that it is not reasonable to expect the defendant to have realized he may have had or did have AIDS or HIV. It is also unreasonable to expect that he realized at that time that he could transmit HIV through heterosexual contact.; Although there is evidence that the defendant may have had one homosexual experience, he did not have a duty to disclose this to the plaintiff. The plaintiff has not shown, either, that the defendant's illnesses prior to March 1985 should have suggested some other communicable disease that he might transmit to her. Therefore, the trial court correctly granted summary judgment to the defendant.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I as a complaint which had been filed. Since then, two levels of courts have held for the defendant.

[135]. McCune v. Neitzel, No. 88-552, Neb. Sup. Ct., AIDS Litigation Reporter 8/10/90.: FACTS: The Nebraska Supreme Court has upheld a state district court jury's ruling that Neitzel had slandered McCune by telling people in their small town that McCune had AIDS. The Supreme Court also reinstated the $25,350 damage award that the jury had granted McCune but which the trial judge had set aside because he said it was awarded as a result of passion.; Neitzel had told several women who were at the home of a sick friend that McCune had AIDS. Word of this spread and reached McCune's mother.; McCune testified that after this rumor spread, he lost his job and had to relocate.

[136]. DiMarco v. Hudson Valley Blood Servs., 147 A.D.2d 156 (1989).: FACTS: In 1985, the plaintiff received numerous blood transfusions during surgery. The blood was supplied by the two defendant blood banks. In 1986, the plaintiff was notified by one of the defendants that he had received HIV contaminated blood. The plaintiff was then tested and treated for AIDS.; In April 1988, the plaintiff sued the defendants for medical malpractice and negligence; the malpractice claim was subsequently dropped. The blood banks moved to dismiss the case because the Statute of Limitations on negligence actions is three years, so the action was time-barred. The trial court agreed, and dismissed the case. The plaintiff appeals, claiming that the "Toxic Torts" bill dictates that the Statute of Limitations did not begin to run until he discovered his injury.; ISSUE: Does the "Toxic Torts" bill extend to cases of HIV infection and provide that the Statute of Limitations does not run until the plaintiff discovers his injury?; HOLDING: The remedial legislation was intended for this type of injury and does extend the Statute of Limitations.; REASONING: The "Toxic Torts" bill is a statute which was enacted to remedy the "injustice [which] results from an archaic rule." In ordinary negligence actions, the Statute of Limitations begins to run from the time of the injury. The 1986 remedial legislation provides that, when one is injured by the latent effects of exposure to any substance, the statute will not begin to run until the plaintiff discovers his injury.; The court rejects the defendants' argument that the statute applies only to a chemical toxin. Although both blood and viruses are natural substances, the language of the statute and the legislative history plainly indicate that the statute applies to "any substance" having latent effects. Further, the purpose of the statute is to prevent injustice to victims who, because their injuries are latent, would lose their opportunity to sue. AIDS is "known to have a dormant quality" and a "victim of AIDS" may not discover his injury until years after HIV infection. "This is precisely the situation" which the statute seeks to remedy.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I, at which time the trial court had dismissed the case. Here, the Court of Appeals overrules the trial court. The action is not time- barred and may now proceed to trial.

[137]. Prego v. New York, 147 A.D.2d 165, 541 N.Y.S. 995 (1989).: FACTS: In 1982, the plaintiff was a foreign medical school graduate working as an extern at Kings County Hospital. She was pricked by an HIV-contaminated needle at an AIDS patient's bedside. She alleges that the doctor whom she was assisting negligently left the needle in a pile of gauze and wrappers which the plaintiff had to clean up. The following year, the plaintiff again was pricked by an HIV-contaminated needle as she herself drew blood from a person with AIDS. On that day, she had been on duty for 22 or 23 hours straight.; In 1984, the plaintiff volunteered to be in a study about the prevalence of HIV in health care workers. She learned then that she was HIV-positive. She was diagnosed with AIDS in 1987. The plaintiff began a lawsuit against the City, two doctors, and the city hospital,in February 1988. The defendants claimed as a defense that the one-year-and-ninety-day statute of limitations barred her claims.; ISSUE: Does the "latent effects" rule, delaying the statute of limitations until one discovers one's injury, apply to HIV infection?; HOLDING: The latent effects rule applies to HIV infection to delay the statute of limitations.; REASONING: In 1986, the New York Legislature enacted a statute which begins the running of the statute of limitations at the time of discovery of the "latent effects of exposure to any substance." The purpose of the statute is to prevent those injured by effects of latent substances from losing their right to a remedy before they even discover they have been injured.; The defendants' contention that the statute only applies to injury due to chemical toxins and drugs, but not to natural substances such as viruses, it not persuasive. Neither is the contention that the legislature, had they intended to, would have expressly mentioned HIV in the statute. The plain language of the statute, and the purpose for it, can only be construed to include HIV as a "substance" which has latent effects.; "It is worthy of note that New York has been unusually tardy" in enacting this statute to protect those injured by latent substances. "Having waited so long. . . we are not prepared to begin a retreat." Therefore, the plaintiff's action is not time- barred and may proceed to trial.; Update since the AIDS Litigation Project I:; In the AIDS Litigation Project I, the decision of the trial court was reported. That court also held that the statute of limitations for latent toxic substances applies to HIV infection.

[138]. Amin v. Lenox Hill Hosp., N.Y. Sup. Ct., N.Y. Cty., NYLJ 8/2/90.: FACTS: The administrator of the estate of a woman who contracted HIV in 1985 from a blood transfusion brought suit against the hospital where the transfusion was given. The plaintiff claimed that the hospital was negligent in failing to properly test the blood that was given to Clara Dockery and failing to warn her of the risks. The plaintiff also brought claims of lack of informed consent.; The judge found that the plaintiff's claim that the hospital was negligent in testing the blood was governed by a toxic tort statute which allows a three year-statute of limitation rather than a two and a half year statute of limitation under medical malpractice law. Therefore, this claim was not time barred and may proceed to trial. However, the plaintiff's claim of lack of informed consent is a medical malpractice claim because it relates to standards of treatment and professional care. It is time barred by the two and a half year statute of limitations.

[139]. Doe v. Sno-Isle Community Blood Bank, 776 P.2d 1361 (Wash. Ct. of App. 1989).: FACTS: The plaintiff was a hemophiliac who had filed a suit against several blood banks for negligently producing HIV-infected blood products.; During the trial, the plaintiff admitted that two of the blood banks had not been involved with producing the products. These blood banks argued that they were entitled to attorney's fees as a sanction for erroneously naming them as defendants. The trial court denied this motion.; The appellate court found that the trial court must investigate the matter to determine what research the plaintiff's attorneys did before filing suit to see if these attorneys should receive sanctions.; STATUS: This case was remanded to trial court for further investigation.

[140]. Brown v. Shapiro, No. 88 CV 842, Wis. Cir. Ct., Rock Cty., AIDS Litigation Reporter 4/13/90.: FACTS: The defendants used HIV-infected semen when they artificially inseminated the plaintiff Diane Brown. Although the semen was tested, the results were not made available until two weeks after the procedure. Brown became pregnant, but miscarried.; ISSUE: Were the defendants negligent for exposing Diane Brown to HIV?; HOLDING: The defendants were not negligent in inseminating the plaintiff with HIV-infected semen.; REASONING: The jury's reasoning was not given. The jury did return a damages award to the plaintiff. However, because the jury found no negligence, Brown is prevented from collecting damages.; Update since the AIDS Litigation Project I:; The complaint was reported in the AIDS Litigation Project I. Since that time, the jury has found that the defendants were not negligent.

[141]. Doe v. Roe, 151 Wis. 2d 366, 444 N.W.2d 437 (1989).: FACTS: The plaintiff suffers from serious neurological deficiencies due to illness following childbirth. During her treatment, she "received massive plasma exchanges." She began an action for medical malpractice against her physician. While the action was pending, she underwent further surgery and was voluntarily tested for HIV at that time. She tested positive for HIV.; Three weeks before the malpractice trial, the plaintiff's lawyer discovered the HIV results. He believed them to be confidential, and deleted them from the medical records which he shared with the physician's lawyer. On the second day of the trial, the plaintiff's lawyer discovered that his staff had neglected to make a notation that something had been deleted from the medical records, so he informed the court of this error. The trial court granted a mistrial to the physician, who felt he would be prejudiced by this surprise HIV evidence. The trial court also allowed the names of the parties to be changed to the pseudonyms "Doe" and "Roe." The plaintiff continues to believe the HIV information, which may have an effect on damages awarded her due to decreased life expectancy, should be confidential.; ISSUES: 1. Is the evidence of HIV status admissible in the malpractice case?; 2. Is the plaintiff entitled to a protective order preventing disclosure of her HIV status?; 3. Did the trial court err in refusing to rule on whether the plaintiff had given informed consent to the HIV test?; HOLDING: 1. The evidence of HIV status is admissible in the malpractice case.; 2. The plaintiff is not entitled to a protective order preventing disclosure of her HIV status.; 3. The trial court did not err in refusing to rule on the issue of informed consent.; REASONING: 1. The language of the statute governing confidentiality of HIV-related information is clear and unambiguous. Any lawful court order requiring HIV status to be disclosed is valid, except if the evidence is being introduced only to show proof of character and procedural safeguards are disregarded. This exception does not apply to Doe. Thus, the trial court has discretion to admit evidence of HIV status.; 2. If the trial court abused the discretion which it has to admit HIV-related information, then the plaintiff would be entitled to a protective order preventing disclosure. The trial court must balance the probative value of the evidence against the prejudicial effect on the parties. The trial court determined the evidence would be relevant to the plaintiff's medical condition, to the amount of damages, and possibly to the issue of negligence itself. The jury must have all the facts. While the stigma of seropositivity may be prejudicial to the plaintiff, it does not tip the balance. The trial court did not abuse its discretion in making this determination.; 3. Doe claims that she did not give informed consent for the HIV test, and therefore the trial court may not order disclosure of the results. The trial court did not err in refusing to rule on this issue. It is "fairer and better" to refrain from ruling when all the facts are not before the court.; STATUS: This case will now proceed to a new trial, which will include evidence of the plaintiff's HIV status.

[142]. Hall v. Sterling, No. A044129, Cal. Ct. of App., 1st App. Dist., AIDS Litigation Reporter 7/28/89.: FACTS: The plaintiff alleged that after ingesting aspirin manufactured by Sterling with other products containing alcohol, he developed a bleeding ulcer and required hospitalization. As a result, the plaintiff required 81 units of blood transfusions from which he contracted HIV.; This liability suit was privately settled on May 13, 1989.

[143]. Taylor v. Sentara Hosps., Law No. L88-1676, Norfolk Cir. Ct., 1988. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va. (Settlement): FACTS: This is a medical malpractice action against the hospital and treating physician. The plaintiff alleged he was diagnosed as HIV-infected but not advised of that fact for six months. Not only was he not provided treatment for HIV, but he was continued on contra-indicated, immunosuppressant drugs for kidney ailment during that period.; STATUS: Settled as to physician during jury deliberations.

[144]. Doe v. Hyatt Hotels, No. MJG-90-1071, U.S. Dist. Ct., Dist. Md., AIDS Litigation Reporter 5/11/90 (Complaint filed 4/17/90).: FACTS: The plaintiff is a New York attorney who has filed a negligence suit against Hyatt Hotels. He allegedly received a needlestick from a syringe left in a hotel room in which he was staying.; The plaintiff alleges that as he was turning down the sheets of the bed in his hotel room, a used hypodermic syringe fell out and stuck the plaintiff in the leg, drawing blood.; The plaintiff claimed that the hotel failed to provide him with timely medical care, failed to prevent illegal drug activities from occurring on its premises and failed to conduct a thorough investigation of the incident despite the plaintiff's request.; The hotel resisted getting the plaintiff medical treatment, the plaintiff alleged. When the assistant manager finally took the plaintiff to an emergency room, the plaintiff left to return to New York to receive treatment from his own physician. The plaintiff claimed that the resident physician at the emergency room was unqualified to give him an HIV test or a hepatitis vaccine. The plaintiff also alleges that this resident attempted to induce the plaintiff to sign an inaccurate report of the incident.; The man who rented the room before the plaintiff has tested negative for both HIV and hepatitis.; STATUS: This case is pending.

[145]. Sullivan v. Albany Medical Ctr., No. 88-CV-1396, U.S. Dist. Ct., N. Dist. N.Y., AIDS Litigation Reporter 8/25/89.: FACTS: The plaintiff alleges she became infected with HIV through blood transfusions, and has filed suit against the hospital and doctor who treated her and the Red Cross who supplied the blood. She alleges that the defendants negligently failed to screen and process the blood that was given to her.; The plaintiff brings the suit under a state law extending the statute of limitations for certain toxic tort suits such as asbestos and tungsten carbide. The plaintiff argues that this AIDS case should be considered under this toxic law rather than as a malpractice suit which has a shorter statute of limitations. The plaintiff seeks more than $50,000 in damages.

[146]. Smith v. Thomas Jefferson Hosp., No. 88-7345, U.S. Dist. Ct., E. Dist. Fla., AIDS Litigation Reporter 7/28/89.: FACTS: The plaintiff has filed suit against Thomas Jefferson Hospital and the American Red Cross for negligently supplying and infusing her late husband with HIV-infected blood. The suit also claims that the defendant's negligence caused the death of the plaintiff's husband and the plaintiff's own contraction of the disease through her husband.; In 1983, the plaintiff's husband underwent coronary bypass surgery and was given transfusions of Red Cross-supplied blood. This blood, the plaintiff alleges, was negligently screened and tested for HIV. The plaintiff also contends that the hospital failed to warn the plaintiff's husband of the possible risk of contracting HIV and therefore failed to obtain his informed consent. She also argues that the hospital negligently failed to notify the plaintiff's husband of alternatives to surgery. Both defendants are charged with breach of express and implied warranty regarding the safety and fitness of the blood.; For the plaintiff's husband's wrongful death, for damages to his estate, and for the plaintiff's personal injuries, the plaintiff seeks more than $50,000 for each count.; STATUS: The federal district court judge has remanded the case to Philadelphia's Court of Common Pleas, where it awaits trial.

[147]. Ross v. Umfrey, No. Civ. 88-0571-C, U.S. Dist. Ct., W. Dist. N.Y.;

[148]. Umfrey v. NeMoyer, No. 11868/88, N.Y. Sup. Ct., Erie Cty., IDS Litigation Reporter 5/26/89.: FACTS: The plaintiff was a nurse at the Erie County Medical Center. She was assisting the defendant Umfrey, a medical student, with an emergency procedure on an AIDS patient. The defendant had injected a needle into the AIDS patient. When he withdrew it, the defendant accidentally jabbed the plaintiff with the needle. Since that time the nurse has developed AIDS-Related Complex. She seeks $12.5 million in damages.; The defendant has filed a petition seeking a court order from the New York Supreme Court for Erie County to obtain legal backing from the state and county government. At the time of the incident he had been a medical student at a state university and was being paid through the Veterans Administration Medical Center of Buffalo.

[149]. Thomas v. Armour Pharmaceutical, J89-0157(W), U.S. Dist. Ct., S. Dist. Miss., March 29, 1989, AIDS Policy and Law 4/5/89.: FACTS: The plaintiff alleges that he contracted HIV and hepatitis from a blood treatment that he received in late 1986 to treat his hemophilia. He brought suit in state court against the pharmaceutical companies that supplied his Factor VIII treatment and against four physicians who were involved in the treatment. The plaintiff alleges that the defendants were negligent by not testing the blood used in his treatment, because tests detecting the HIV antibody were available as early as April 1985.; The four physicians were dismissed as defendants by the state court judge. The case has now been removed to federal court.; The remaining defendants deny negligence in their Factor VIII production and distribution procedures. They allege that they followed all regulations of the Food and Drug Administration. The defendants also allege that the plaintiff was properly informed of the risks of developing AIDS and hepatitis.; STATUS: As of April 5, 1989, the case awaited trial in federal court.

[150]. Hill v. Miller, No. CI-90-5455 #32, Orange Cty. Cir. Ct., Fla., AIDS Policy and Law 7/25/90.: FACTS: A man has filed a negligence and battery suit against his former homosexual lover for allegedly transmitting HIV to him.; Hill alleges that he had sexual relations with Miller for four years, in which time Miller claimed that theirs was a monogamous relationship. Hill claims that Miller was not in fact monogamous and that Miller contracted HIV from these other relations.; Hill claims that he would not have consented to sexual relations with Miller if he had known that Miller carried HIV.; STATUS: This case is pending.

[151]. Doe v. Cedars Medical Ctr., No. 90-08190, Fla. 11th Jud. ir. Ct., AIDS Litigation Reporter 3/9/90 (Complaint filed 2/8/90).: FACTS: The plaintiff, a janitor at the defendant hospital, has filed charges against his employer after he was stuck by an HIV- contaminated needle. He had been asked to pick up a garbage bag in a room not normally within his realm of responsibility. The bag was full of HIV-contaminated needles and usually was disposed of by qualified independent contractors.; Since the plaintiff has tested HIV-positive, he has suffered much mental anguish and the quality of his life has deteriorated. He alleges that the hospital was negligent for allowing him to handle the bag and liable for his contracting HIV.

[152]. Torres v. Ortega, No. 89L06278, Ill. Cir. Ct., Cook Cty., AIDS Litigation Reporter 4/13/90.: FACTS: The parents of a boy who contracted HIV from a blood transfusion in 1983 are suing the blood bank that supplied the infected blood and various medical care providers. The boy has since died of heart failure due to an AIDS-related pneumonia.; The plaintiffs allege that they should have been informed of the risk that their child could contract HIV during the surgery. They also allege it was negligent not to inform them of the possibility that they, the parents, could donate blood for their son and eliminate this risk of contracting HIV. The plaintiffs also contend that the blood bank was negligent in not screening their donors for persons who may have AIDS, for failing to test "and/or purify" the donated blood, and for selling blood infected with HIV.; STATUS: This case had been removed to federal court because the Red Cross had petitioned that the American Red Cross Charter had created original federal question jurisdiction. The district court, however, remanded the case back to state court. The American Red Cross Charter does not explicitly create federal jurisdiction.

[153]. Doe v. Little Company of Mary Hosp. & Health Care Ctrs., Ill. Cir. Ct. 90 L 1459, AIDS Policy and Law 2/7/90.: FACTS: A child and his father are suing a hospital for negligently giving the child a blood transfusion in 1983, thereby infecting him with HIV. The child was mildly anemic; the plaintiff alleges that transfusions were not necessary to treat the child.; STATUS: This case is pending.

[154]. Abate v. Healthcare Int'l, 560 So.2d 812 (La. 1990).: FACTS: Two medical malpractice cases were consolidated for review by the Supreme Court of Louisiana. In one, the plaintiff Reed claims to have contracted HIV from a blood transfusion during surgery. Reed has since died of AIDS, and his wife has been diagnosed with AIDS. The Reeds claim that the defendant hospital and blood bank were negligent in failing to provide adequate warning of the risks of blood transfusions. They claim that, had Reed been properly informed, he would have elected to use blood donated by family and friends. The other malpractice case was not AIDS-related.; In each of these cases, the complaints were dismissed because the physicians claimed that the plaintiffs had not followed the procedure required under the Medical Malpractice Act. Where physicians are qualified health care providers enrolled in the Patient Compensation Fund, the plaintiff must first present his complaints to a medical review panel. Furthermore, the damages are limited to a maximum of $500,000. However, the plaintiffs each claim that the defendants were not enrolled in this program at the time of the injuries, but only at the time the lawsuits were filed. The court of appeals refused to hear the case, but the Supreme Court granted a hearing.; STATUS: The Supreme Court of Louisiana held that the physicians' enrollment in the program was not retroactive. The plaintiffs' cases were each dismissed improperly. The court therefore reinstated the cases, which will now proceed to trial.

[155]. In re Saun Miller (N.Y.C. Health & Hosp. Corp.), N.Y. Sup. Ct., AIDS Policy and Law 5/3/89.: FACTS: A negligence suit has been filed by the mother of an infant. Four years later, it was discovered that the infant had contracted HIV through a transfusion he received shortly after birth.; Normally, there is a ninety-day statute of limitations for the filing of this type of suit. The City of New York, with whom the case was originally filed, did not allow the case because the statute of limitations had expired. However, because the infant's illness was not discovered until recently, the delay in filing the case was excused by the New York Supreme Court. The court argued that the defendant will not be prejudiced by the delay because the hospital records are still available to aid in their defense.; STATUS: This case is awaiting trial.

[156]. Doe v. Price, No. 5914, Pa. Ct. of Common Pleas, Phil. Cty., AIDS Litigation Reporter 8/11/89 (Complaint filed 8/2/89).: FACTS: The plaintiff Jane Doe filed charges against a funeral director for allegedly misrepresenting how her son's body would be handled. Her son had suffered from AIDS.; Doe alleges that Price did not embalm her son's body, but had left it for four days in a local mortuary. Apparently, on the day of the memorial service Price left the body of Doe's son in a hearse outside the funeral home and allowed the family to believe that the body was within a closed casket which Price had provided for the memorial service. Only after the service, when Price was locking the door to the funeral home with the empty casket inside, did the Does realize what Price had done.; Doe alleges that Price intentionally misled her to believe that state law prohibited open-casket services for persons who had AIDS, that special burial clothes and a concrete vault were also required by law, and that Price did not allow her to select the coffin for her son or let family members bear the body as was agreed upon in their contract.; Doe seeks damages for breach of contract, fraud, negligence, intentional and negligent infliction of emotional distress, abuse of a corpse, and deceptive commercial practices. She is also charging Price for conversion of personal property. She alleges that Price forwarded the $50 remaining in the son's account for coverage of funeral costs without her permission.; STATUS: This case is pending.

[157]. Walker v. Armour Pharmaceutical, No. 5591, Pa. Ct. of Common Pleas, Philadelphia, AIDS Litigation Reporter 6/22/90 (Complaint filed 9/28/89).: FACTS: The plaintiffs are a group of Canadian hemophiliacs. They claim that Factor VIII medication manufactured by the defendant caused each of them to contract HIV after taking the drug in 1986 and 1987. All of the plaintiffs were HIV-negative before taking the defendant's drug Factor VIII.; The plaintiffs claim that the defendant negligently heat- treated the product at a low temperature when they were aware that a higher temperature would kill HIV present in the blood. The plaintiffs seek an unspecified amount in damages.; The court denied efforts by the defendant to have the case moved to Canadian courts based on procedural arguments. The case awaits trial in Pennsylvania.

[158]. Long v. Cutter, No. CL89000525-00, Va. Cir. Ct., Roanoke, Va., AIDS Litigation Reporter 6/23/89.: FACTS: The plaintiff asked doctors Cutter and Basile to test him for HIV while he was hospitalized in 1987. He suspected that he was infected after receiving 79 blood transfusions in 1980 for the treatment of a kidney problem. The doctors both claim they never received the results and Long never contacted them to get the results. Apparently, Dr. Basile ordered the HIV tests but the results were sent to Dr. Cutter who never acted upon them. The test results were positive.; The plaintiff learned in August 1988 that he was HIV- positive. The plaintiff claims that the doctors were negligent in failing to warn him of his positive results and that the doctors bear responsibility for the infection of as many as twenty women with whom the plaintiff had unprotected sexual intercourse.; Because neither defendant has denied liability in their response, it seems the amount of damages is the main issue to be determined.; STATUS: This case is pending.

[159]. Johnson v. West Virginia Univ. Hosps., No. 19768, W.Va. Sup. Ct., AIDS Litigation Reporter 7/13/90.: FACTS: The West Virginia Supreme Court has agreed to review a negligence case that awarded a hospital security guard $1.9 million for being bitten by an AIDS patient.; The AIDS patient became violent in the hospital emergency rooms. While the plaintiff and others tried to restrain the patient, the patient bit the plaintiff on the arm, drawing blood. The plaintiff has tested negative for HIV.; The defendant argues that Johnson has not suffered compensable injury and Johnson did not prove causation. The hospital also argues that the trial court erred in its instructions to the jury.; Update since the AIDS Litigation Project I:; The filed complaint was reported in the AIDS Litigation Project I. Since that time the plaintiff was awarded damages and the West Virginia Supreme Court agreed to review this decision.

B. The "Right to Know"

[160]. DiMarco v. Lynch Homes-Chester County, Inc., 384 Pa. Super. 463, 559 A.2d 530 (1989).: FACTS: During a struggle with an agitated patient, a phlebotomist pricked herself with a syringe containing the blood of the patient. The phlebotomist learned that the patient carried Hepatitis B, and went to her physician. The physician told her that if she did not develop Hepatitis within six weeks, she would never develop it, and told her to refrain from sexual relations for six weeks. After eight weeks, the phlebotomist felt fine, and resumed sexual relations with her exclusive partner. The next month, she was diagnosed with Hepatitis B, and three months later, her sexual partner was also diagnosed with Hepatitis B.; ISSUE: Does a physician have a duty to inform a non-patient, non- married sexual partner of a patient's communicable disease?; HOLDING: A physician does have a duty to inform a non-patient, non- married sexual partner of a patients's communicable disease.; REASONING: The court based its decision to expand a physician's duty beyond the duty to the patient, on several factors. One essential factor was that Hepatitis B is a communicable disease. The control of communicable diseases is a "momentous task which is of the utmost importance." In a footnote, the court cited AIDS, Syphilis and Tuberculosis as other examples of communicable diseases. However, the court specifically limited its holding to the facts of this case. Nowhere in the opinion is the issue of confidentiality or doctor-patient privilege mentioned.

C. Workers' Compensation

[161]. American Fed'n of Gov't Employees, Local 2547 v. Veterans Admin. Medical Ctr., FMCS Case No. 89-23187, Iowa City, Iowa, AIDS Policy and Law 4/4/90.: FACTS: Building maintenance employees filed a grievance with a federal arbitrator claiming that they should be given differential pay for cleaning and hauling trash from a room where HIV research was being conducted. The workers claimed that they were exposed to HIV in their daily cleaning duties. The Veterans Administration (VA) argued that the workers were instructed not to enter the room.; The arbitrator ruled that the workers were in no danger of the virus. Satisfactory precautions had been taken by the VA to protect workers from exposure to the virus. Therefore, the workers were not entitled to environmental differential pay. The arbitrator also ordered that the employees and the VA management should establish better communication so that the workers are not confused about their responsibilities concerning the room where HIV research is conducted.

[162]. Wuresthoff Memorial Hosp. v. Hurlbert, 548 So.2d 771 (Fla. Dist. Ct. of App. 1989).: FACTS: The plaintiff is a hospital laboratory employee. In the course of his job, the plaintiff draws and processes blood samples, which sometimes leak or spill.; Months after receiving a dog bite on his thumb, the plaintiff began to feel ill. He tested positive for Hepatitis B. The plaintiff argued that he received this infection from work-related handling of blood and was entitled to workers' compensation. The hospital disputed the claim. The plaintiff was granted workers' compensation and the appellate court affirmed.

[163]. Peters v. New York City Health & Hosp. Corp., No. 22907-89, N.Y. Sup. Ct., Kings Cty., AIDS Litigation Reporter 6/8/90.: FACTS: Nurse Annabelle Peters was accidentally stuck with a needle by another nurse, who was closing a hospital room curtain. Peters has not yet been tested for HIV. The hospital allegedly will not release the complete medical record of the patient who had just been given the injection by Peter's fellow nurse. The hospital has not disclosed that patient's HIV status.; ISSUE: Should the plaintiff's court action be barred because she first filed a workers' compensation claim?; HOLDING: The plaintiff's court action is barred because she first filed a workers' compensation claim.; REASONING: Because the plaintiff's workers' compensation claim is still pending her suit is dismissed. She must first seek relief through the workers' compensation claim.

[164]. Doe v. San Francisco, No. SFO 0335097, Cal. Worker's Comp. App. Bd., AIDS Litigation Reporter 7/14/89.: FACTS: An agreement has been reached between San Francisco's worker's compensation claims-handling division and the plaintiff, a nurse infected with HIV as a result of an accidental needlestick.; For two years, the plaintiff has argued with the city over how many persons who knew the plaintiff's identity would process her claim. The plaintiff argued that under California's 1985 AIDS Confidentiality Act fewer than six persons should know her identity. The city claimed more persons were procedurally required. The agreement allows that a maximum of four city employees, two attorneys, and two processors can know of the plaintiff's true identity.; This agreement gives the plaintiff greater identity protection and will allow the dispute to move closer to final resolution.

[165]. Doe v. Cooper Investments, No. 89-B-597. U.S. Dist. Ct., Dist. Colo. Source: LAMBDA (Complaint filed April 6, 1989).: FACTS: The plaintiff was an employee of the defendant, and had always received satisfactory evaluations. After he told his boss he had AIDS, he was fired. The plaintiff alleges that he was fired solely because the employer did not want to pay for medical benefits for a person with AIDS. The plaintiff filed suit, seeking to have his job and benefits restored or to received damages in the amount of wages until the estimated date of his retirement; permanent medical benefits; and an order preventing the employer from disclosing the plaintiff's medical condition.; ISSUE: Does the Employee Retirement Income Security Act of 1974 (ERISA) mandate the relief which the plaintiff seeks?; STATUS: This complaint is awaiting trial.

D. Contracts and Wills: AIDS Dementia

[166]. Estate of Stewart McKinney, Conn. Probate Ct., Westport, Conn., AIDS Litigation Reporter 9/22/89.: FACTS: The claims against the estate of Stewart McKinney by a Georgia real estate agent, who says he was McKinney's homosexual lover, have been denied by a Connecticut Probate Court judge.; The judge ruled in favor of McKinney's widow, the estate administratrix. Lucy McKinney had loaned money to her late husband from her personal trust fund. Her claim against her husband's estate will probably exceed the estate's value.

[167]. Kelso v. Watson, 204 Ill. App. 3d 727, 562 N.E.2d 975 (1990).: FACTS: The plaintiff brought an action against a mortuary and mortician, seeking damages for intentional infliction of emotional distress, caused by telling the plaintiff that the decedent had AIDS and therefore would have to be cremated and not buried.; ISSUE: Must the plaintiffs allege actual and proximate causation of injury by defendant's conduct, as well as whether defendant had knowledge of statement's falsehood, in order to proceed in an action for intentional infliction of emotional distress?; HOLDING: The plaintiffs must allege causation and knowledge.; REASONING: The plaintiffs did not sufficiently allege that the mortician knew the decedent did not have AIDS when cremation was discussed, or how the mortician knew the decedent did not have AIDS or should have known that she did not have AIDS, or why cremation was particularly repugnant to the plaintiffs.

[168]. Klein v. Devaney, NY Sup. Ct., NY Cty., AIDS Policy and Law 3/7/90.: FACTS: The plaintiff had attempted to sue the estate of her former lover for exposing her to HIV, thus causing her emotional trauma. So far, she has tested negative for HIV. A New York State Supreme Court justice has dismissed the suit because it is barred by another settlement that the plaintiff made with the man's estate. The plaintiff signed an agreement three months after the man's death agreeing to vacate the apartment and forego all claims on the man's estate in return for $25,000. The broad language of this settlement barred the plaintiff's claim.

[169]. Neill v. Performing Animal Welfare Soc'y, No. 08008, Cal. Super. Ct., Sacramento Cty., AIDS Litigation Reporter 4/13/90.: FACTS: A settlement has been reached in the contest over the will of Beverly Louise Neill, also known as Amanda Blake, who died of AIDS- related causes.; Three days before Blake died she signed a new will, cutting the inheritance of her family members and instead giving it to the Performing Animal Welfare Society (PAWS). Blake's family had contested that she did this under the coercion of Pat Derby, Blake's live-in companion, who was also the President of PAWS.; Blake's mother has agreed to drop her claim. In return she will receive $124,000, the value of a house in which mother and daughter once lived, and all of her late daughter's jewelry.

VIII. ADMINISTRATION OF JUSTICE IN THE COURTS

A. Right of Media to Depositions

[170]. M.A.S. v. United States, U.S. Dist. Ct., W. Dist. Mo., 1989 U.S. Dist. LEXIS 9169, 16 Media L. Rep. 2135, August 7, 1989.: FACTS: The plaintiff seeks to seal the file in this case involving a blood transfusion. The plaintiff, the wife of a serviceman, allegedly contracted HIV from a transfusion received in a government hospital. She alleges overriding privacy concerns.; ISSUE: Should the plaintiff's motion to seal the file from public scrutiny be granted?; HOLDING: The plaintiff's motion to seal the file is denied.; REASONING: The court recognizes the stigma that the public attaches to persons with AIDS and is sympathetic to the plaintiff's pleading. The court has already ordered that the caption in this case be changed to protect the plaintiffs' anonymity. However, first amendment considerations weigh against further restrictions. Because this litigation may be of interest to medical and legal writers and to other litigants involved in similar claims, the court declines to seal this file. Furthermore, the plaintiff is a nonresident of the district and discovery materials of a sensitive nature are not likely to be placed in open files until trial. Therefore, overriding conditions do not exist to seal the file.

[171]. Flynn v. Doe, 553 N.Y.S.2d 288 (1990).: FACTS: The plaintiff, Flynn, has filed suit against the estate and the company of the deceased defendant, Doe. Flynn alleges fraud in that Doe concealed that he had AIDS before unprotected sexual contact with Flynn, and that Doe wrongfully terminated Flynn from employment. The representatives of Doe's estate now move for an anonymous, closed trial, the sealing of the files of court documents, and the continued use of the pseudonyms "Doe" and "XYZ, Inc."; ISSUE: Does the Public Health Law which permits a court to disclose HIV-related information only for proper cause also authorize an anonymous, closed trial?; HOLDING: The Public Health Law does not so increase a constitutional right to privacy as to prevent the public scrutiny of court proceedings.; REASONING: The underlying principle to be protected is the right of the public and the press to examine all civil and criminal proceedings, so as to enhance the integrity and quality of the courts.; While the Public Health Law does provide increased protection for HIV-related information, the legislature's stated intent was to protect confidentiality as a means to encourage voluntary testing for HIV. This purpose is served less well when the person with AIDS is deceased.; The desire for confidentiality must be balanced against the desire for open court proceedings. The court found that "secrecy and silence" will not serve the interests of any party. This is especially true as to "information about the AIDS plague." AIDS information is required to increase public awareness, except where the privacy of a person with AIDS must be protected.; The court, therefore, denied the motion for closed trial but allowed the anonymity to continue for ten days, during which time the defendant Doe could apply for a stay pending appeal.

B. Expedited Trial

[172]. In Re Federated Dep't Stores, No. 1-90-00130, Document No. 1R-1, 1990 Bankr. LEXIS 1016, May 16, 1990, (Motion for Relief from Automatic Stay).: FACTS: The plaintiff was allegedly unlawfully detained by the defendant for shoplifting. The defendant held the plaintiff for over ninety minutes, causing him severe emotional and physical pain. The plaintiff filed a tort case seeking damages from the defendant.; The defendant has filed a voluntary petition under Chapter 11 of the U.S. Bankruptcy Code. An automatic stay has been entered freezing all lawsuits against the defendant-debtor.; The plaintiff requests relief from automatic stay. The plaintiff is a person with AIDS whose health is rapidly deteriorating. If relief from stay is not granted, the plaintiff will suffer irreparable injury and prejudice because he will most likely be incapacitated or dead by the time the defendant is out of bankruptcy. The plaintiff further requests permission to pursue his case, satisfying the liquidated amount of his claim to the extent possible.; STATUS: This case is pending.

[173]. Krishna v. Univ. of Cal. Regents, No. 898174, Cal. Super. Ct., San Francisco Cty., ALR 9/8/89.: FACTS: An earlier trial date has been set in this case involving a hemophiliac who contracted HIV through his Factor VIII treatment.; The plaintiff Krishna alleges that the defendants, the University of California Medical Center and Cutter Biological/Miles Laboratories, were negligent in processing the blood used to make his medication, failed to warn of the risks involved, and failed to obtain informed consent. Krishna also charges the defendants with the wrongful death of his wife, who contracted HIV from Krishna, loss of consortium, and negligent and intentional infliction of emotional distress.; STATUS: This case is pending.

C. Prejudice to Trial Court's Decision

[174]. Minnesota v. Santos, No. 17447, U.S. Dist. Ct., 6th Dist., January 25, 1988. Source: LAMBDA.: FACTS: The defendant was on trial for criminal conduct. The State asked the court to allow it to force the defendant to wear leg irons during the trial. The court officers asked to wear rubber gloves and face masks during the trial.; ISSUES: 1. May the defendant be forced to wear leg irons during his trial, in view of the jury?; 2. May the court deputies wear rubber gloves and face masks during the trial?; HOLDING: 1. The defendant may be forced to wear leg irons; however, they should be "minimally visible" to the jury.; 2. The court deputies may wear rubber gloves during the trial, but not face masks.; REASONING: The court based its decision to allow leg irons and rubber gloves on four factors. The defendant has a "propensity to run," and his record revealed misconduct out of court. He also tested positive for Hepatitis B, and his "apparent status" was HIV- positive.

IX. FAMILY LAW

A. Child Custody and Parental Visitations

[175]. In re J.L.O., 1197 Ga. App. 596, 398 S.E.2d 853 (1990).: FACTS: The parents of J.L.O. were separated and custody had been placed in her mother by virtue of a consent order of the Superior Court. Thereafter, the mother had been diagnosed with AIDS, apparently as a result of her sexual relationship with the father, who was HIV-positive. The father was a habitual drug user, had a history of hospitalization for mental disorders, had threatened to do bodily harm to the child, had not been able to maintain steady employment, had participated in theft and forgery offenses, had made threats to the maternal grandmother who had custody of the child after the mother's death, and had failed to pay child's support ordered by juvenile court.; ISSUE: Was there sufficient evidence to support an order terminating father's parental rights?; HOLDING: After reviewing the evidence in the light most favorable to the father, any rational trier of fact could have found clear and convincing evidence that the natural parent's rights to custody were lost.

[176]. Steven L. v. Dawn J., 561 N.Y.S.2d 322 (1990).: FACTS: The petitioner father seeks modification of a custody order awarding his infant child to the respondent mother. The mother argued that the motivating factor for the request was that she tested positive for HIV.; ISSUE: Does the mere fact that the mother had tested positive for HIV, without more, constitute a "material change in circumstances" warranting change in custody from mother to father, where evidence clearly established that the mother had not been incapacitated by the condition?; HOLDING: The mere fact of HIV-positive status is not a "material change in circumstances."; REASONING: The standard to be applied in determining modification of existing custody orders is the best interest of the child under prevailing circumstances. HIV-infection alone is not grounds for a change in custody. The mother's HIV-positive status did not, nor would it in the near future, significantly impair the mother's ability to care for the infant child and the child's physical or psychological well-being is not threatened by the mother's HIV infection.

[177]. In Re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990).: FACTS: Mr. B. has been the "one consistent and caring person in the life of Charles B." Charles is an eight year old boy with leukemia and fetal alcohol syndrome. Charles' natural parents have released him for adoption, and Mr. B. petitioned to adopt him. Mr. B. is a homosexual and it is claimed, among other things, that he might transmit HIV to Charles.; ISSUE: Did the Court of Appeals err in holding that, as a matter of law, homosexuals are not eligible to adopt?; HOLDING: It is not true that, as a matter of law, homosexuals are not eligible to adopt.; REASONING: While any unmarried adult in Ohio is eligible to adopt, that right is not absolute. Each case must be examined individually to determine what is in the best interests of the child. In this case, Mr. B. is the best adoptive parent for Charles, and is awarded permanent custody.; Dissent:; Homosexuality alone is not enough to deny a person the right to adopt. However, where there is or will be a harmful effect on the child due to the homosexuality of the parent, the adoption should be denied. Charles' immune system is depressed due to his leukemia treatments. Although Mr. B. currently tests HIV-negative, adoption "is not just for today but forever."; Mr. B., a psychologist, lives with Mr. K., a research scientist. "To place Charlie in an environment with a homosexual who is engaged in a homosexual relationship is not in the best interest of the child." "Why place a child whose immune system has already been altered in such an environment?" This placement will "place Charles at increased risk for exposure to HIV infection."

[178]. J.P. v. P.W., 772 S.W.2d 786 (Mo. App. 1989).: FACTS: The mother of a two-year-old girl seeks to modify her Texas custody decree. The father is in a permanent, monogamous homosexual relationship. "He would probably marry Reed if he were permitted to do so." The Texas decree gives permanent custody to the mother, with "possessory custody" to the father for a ten day period every two months. The mother wants to eliminate any unsupervised or extended visits.; ISSUES: 1. May the Missouri courts modify the Texas custody decree?; 2. Is it in the child's best interest to have extended, unsupervised visits with her homosexual father?; HOLDING: 1. The Missouri courts may modify the Texas custody decree because there has been a change of circumstance.; 2. It is not in the child's best interest to have unsupervised, extended visits with her homosexual father.; REASONING: 1. The Missouri courts may modify the Texas decree because of new circumstances. These include the fact that the father and his lover hold hands and kiss in the child's presence, that the child's behavior changed when she returned from a visit, and that the child had a vaginal tear when she returned from a visit.; 2. The court held that the father may visit his daughter only when supervised by a "responsible adult," and that overnight visits of any duration were "impractical." This holding was based on the entirely unexplained vaginal tear observed in the child, and the law of Missouri, which has been "consistently followed," that a homosexual parent is unfit and an improper custodian. Furthermore, both parents and the court are aware that AIDS occurs more frequently among homosexuals. The father's expert witness "acknowledged" that it is possible to be HIV-infected but test seronegative. The expert also "doubted that AIDS could be spread through casual contact."

[179]. Tubb v. Tubb, No. 3306, Tenn. Chancery Ct., Wilson Cty., AIDS Litigation Reporter 6/22/90.: FACTS: An HIV-positive man's visitation rights to his children under the terms of his 1978 divorce agreement were being ignored by his ex-wife. The ex-wife, Cathy Tubb, claimed that her ex-husband had been delinquent in child support payments and that he had not disclosed his illness to her. She also denied access to the children because of her ex-husband's drug problem. Cathy has alleged that her ex-husband should not be allowed to administer growth hormone injections to their son Christopher because Tubb could pose a medical threat to the boy.; The chancellor ordered Cathy Tubb to present the children for visitations with their father. The chancellor found that there was no risk of transmission of HIV and that it was important for the children to be with their father because of his limited future. Continued child support payments and drug testing twice a month were also outlined as requirements for the visitations.

[180]. In re Cassey D., 783 S.W.2d 592 (Tex. App. Houston 1st Dist. 1990).: FACTS: Cassey is a five-year-old girl with multiple birth defects known collectively as Charge Syndrome. She also became HIV infected through a blood transfusion. Cassey is now cared for at a special child health care facility in Dallas.; ISSUE: Must the health care facility grant visitation to an adult, non-relative of the child?; HOLDING: The health care facility has discretion to determine visitation by non-relatives.; REASONING: The parents' rights to determine their child's environment and surroundings must sometimes yield to the child's best interests. The health care facility and the trial court agreed that Cassey's best interests are served by extremely limited visitation privileges.

X. CONFIDENTIALITY

A. The Media

[181]. Dorsey v. Nat'l Enquirer, Inc., No. CV 89-0209 (CBM), U.S. Dist. Ct., C. Dist. Cal., 1990 U.S. Dist. LEXIS 6084, 17 Media L. Rep. 1527, February 5, 1990.: FACTS: The plaintiff Dorsey, also known as Englebert Humperdinck, has brought a libel suit against the defendant for publishing an article proclaiming that the plaintiff has AIDS. The defendant quoted extensively from Kathy Jetter, a woman who had brought a successful paternity action against the plaintiff. Since that paternity action, Jetter has applied for an upward modification of the amount of child support and requested that the plaintiff acquire life insurance. Jetter claimed in her affidavit that this was necessary because the plaintiff had AIDS.; The defendant used this statement, made in the course of judicial proceedings, along with Jetter's interview to write its article.; ISSUES: 1. Should the defendant's article be absolutely privileged under state law?; 2. Should the defendant's article be absolutely privileged under the first amendment?; 3. Should the incremental harm doctrine prevent the plaintiff from recovering damages?; 4. Should the defendant be awarded summary judgment?; HOLDING: 1. The defendant is absolutely privileged to publish the article at issue under state law.; 2. The defendant's article is absolutely privileged under the first amendment.; 3. The incremental harm doctrine prevents the plaintiff from recovering damages.; 4. The defendant is awarded summary judgment.; REASONING: 1. California law confers an absolute privilege to publish a "fair and true" report of statements made in the course of judicial proceedings. The defendant published the allegation that the plaintiff had AIDS pursuant to Jetter's affidavit. Also evincing the article's fairness was the inclusion that the plaintiff denied these allegations. Reporting out-of-court statements does not destroy the privilege so long as those statements are made by a party to the proceeding.; 2. The first amendment does not permit private damage actions based upon an accurate account by the media of allegations made in a judicial proceeding. The defendant's article is privileged and the plaintiff cannot maintain a private suit for damages.; 3. Because the article alleges no more than what was alleged in the affidavit, embellishments and editorializing are within the scope of literary license and are not actionable. The alleged libels do the plaintiff's reputation so little incremental harm beyond the harm imposed by the rest of the publication that the claim should be dismissed as non-actionable.; 4. Based upon the foregoing conclusions there are no genuine issues of material fact in dispute and the defendant is therefore entitled to summary judgment.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I as it appeared in the California Superior Court. Since that time, the case has moved to the federal district court and the defendant has been awarded summary judgment.

[182]. Dannemeyer v. Bay Area Reporter, Source: A.C.L.U. (Press Release, June 8, 1989).: FACTS: The defendant, a gay-oriented newspaper, published a memo written by the Charleston Research Group which concerned politics and AIDS. The memo discussed election tactics for the 1988 presidential election, and how the Republican party could use the issue of AIDS to attack the Democrats. The memo said that United States Representative William Dannemeyer was "foaming at the mouth" and was "far too emotional to do any good" for the Republicans. The Representative sued the newspaper for libel.; ISSUE: Is the newspaper liable for libel arising from the comments about Representative Dannemeyer?; HOLDING: The newspaper is not liable for libel arising from the comments about the Representative.; REASONING: The Superior Court in Sacramento City dismissed the law suit on First Amendment grounds. The court found that the Representative could not prove libel even if there were a trial, because the newspaper printed only opinions about him and did not allege anything to be factual.

[183]. Van Straten v. Milwaukee Journal, 447 N.W.2d 105 (Wis. App. 1989).: FACTS: Van Straten was held at the Outagamie County Jail while awaiting trial. He attempted suicide, and was taken to a hospital for treatment and then to the Winnebago Mental Health Institution (WMHI). At WMHI he was tested for HIV, and after returning to jail, he was informed that he was HIV-positive. He then voluntarily returned to WMHI. A few days later, the county sheriff notified reporters of the Appleton Post-Crescent newspaper that Van Straten was homosexual and had "exposed jailers to AIDS when he slashed his wrists." The newspaper reported this the same day, including in the article the sheriff's desire for policies on AIDS in prison.; The next day, an official from the Department of Health and Social Services informed the reporter that Van Straten did not have AIDS, but was only HIV-positive. This information was reported in the paper, but Van Straten later said, "the newspapers had him believing he did have AIDS." The next day, Van Straten contacted the reporter and the newspaper then ran an article titled "AIDS prisoner tells his side."; Newspaper articles on the "AIDS prisoner" continued from November 1985 to April 1987. The Associated Press had distributed all the stories to other Wisconsin newspapers, which also printed them. Van Straten sued the newspapers, claiming defamation, invasion of privacy, and violation of his right to confidentiality of HIV status. The trial court gave summary judgment to the newspapers because Van Straten could not prove the elements of his claims even if he went to trial.; ISSUES: 1. Can Van Straten maintain a claim of defamation against the newspapers?; 2. Can Van Straten maintain a claim of invasion of privacy?; 3. Can Van Straten maintain a claim that his right to confidentiality was violated?; HOLDING: 1. Van Straten cannot maintain a claim of defamation against the newspapers.; 2. Van Straten cannot maintain a claim of invasion of privacy.; 3. Van Straten cannot maintain a claim that his right to confidentiality was violated.; REASONING: 1. The determination to be made when examining the defamation claim is whether Van Straten was a public figure, and if so, if he has proven malice. A public figure, unlike a private citizen, must prove malice in order to win a claim of defamation. A person may be a public figure for all purposes, or be a limited purpose public figure. The Supreme Court of Wisconsin has held that there are two requirements for a limited purpose public figure: there must be a public controversy, and the person must have "injected himself into the controversy so as to influence the resolution" of it. Nevertheless, this appeals court rejected this analysis in favor of one used by the federal courts. The federal analysis includes: isolation of a public controversy, determination that the person's role is more than trivial, and determination that the alleged defamation was germane to the person's role in the controversy. The court reasoned that voluntarily injecting oneself into the controversy is not the only way to become a limited purpose public figure.; The court then applied the three step analysis to the facts. First, a public controversy about AIDS in prison was already in existence before Van Straten's suicide attempt. Second, his involvement in the controversy was not trivial, whether or not it was voluntary. Finally, all statements which Van Straten claims to be defamatory were germane to the controversy about AIDS and not printed "for any news value they might have had in and of themselves." Therefore, Van Straten is a limited purpose public figure.; To maintain a defamation claim, then, Van Straten would have to prove malice. Malice deals not with hatefulness but with knowledge or reckless disregard that a statement was false. The first amendment right of free speech requires that there be "clear and convincing evidence" that the newspapers knew or did not care whether the statements were false. The court found there was no malice. "[M]ere proof of failure to investigate the accuracy" is not reckless disregard for the truth. Additionally, Van Straten gave conflicting information as to whether he did in fact have AIDS, and the allegations that he was homosexual and had splashed blood on his jailers were received from jail personnel whom the reporters believed. Furthermore, the newspapers who merely rely on the Associated Press wire service are generally not negligent as a matter of law.; 2. Wisconsin statutes and court decisions indicate that there can be no claim of invasion of privacy where there is a "legitimate public interest." The court held that the public controversy it found for the defamation claim also satisfies the public interest here. Therefore, Van Straten cannot maintain a claim for invasion of privacy.; 3. The Wisconsin statute which provides for the confidentiality of one's HIV status applies only to prevent disclosure by health care providers and blood banks, and does not apply to newspapers. Therefore, there is no right to confidentiality which could have been violated, so the claim failed.

[184]. Doe v. Judicial Qualifications Comm. of Fla., No. 89-6362- CIV-ZLOCH, U.S. Dist. Ct., S. Dist. Fla. Source: A.C.L.U.: FACTS: The plaintiff is an attorney who specializes in AIDS-related litigation. He also writes and lectures about the legal issues arising from the AIDS epidemic. In April 1989, he filed a complaint against a Florida judge who allegedly discriminated against a person with AIDS. The Judicial Qualifications Committee then notified the plaintiff that all complaints against judges in Florida are confidential and that the plaintiff may not write or speak about the complaint. The plaintiff believes he has a right to speak about any case in which he is a party. He brought suit in the district court.; ISSUE: Does the law requiring confidentiality of a complaint against a judge violate the First Amendment right to free speech?; STATUS: This case is awaiting trial.

[185]. Lowe v. KTUL Television, No. CJ-90-02755, Okla. Dist. Ct., Tulsa Cty.,

[186]. Grodin v. Marshall Bama Enterprise, No. CJ-89-5042, Okla. Dist. Ct., Tulsa Cty., AIDS Litigation Reporter 7/27/90. [XI.B.]: FACTS: The mother of twins, one of whom died from AIDS-related causes, has filed a slander and defamation suit against a local television station and a bakery.; When Inez Lowe's son Gary Grodin died from AIDS-related causes, his twin brother Terry Grodin was fired from his job at a bakery, allegedly due to the fear of AIDS. Terry brought legal action against his former employer for AIDS discrimination.; The local television station, KTUL, broadcasted the news of Terry's legal action and also revealed that his brother Gary had died of AIDS. According to Inez Lowe, this public broadcast notified the children of Gary Grodin of the cause of their father's death, which they had not known before. Additionally, the children experienced embarrassment and were discriminated against by their classmates and school personnel as a result of the public disclosure of Gary's AIDS-related death.; Inez Lowe's suit claims that information of Gary's death was given to KTUL unlawfully by the employees of the bakery where Terry had worked.; KTUL has responded to Lowe's suit by claiming all statements made in their broadcast were true. KTUL also claims that the plaintiff was not mentioned in their broadcast, thus preventing her from making a claim for slander under Oklahoma law.; STATUS: Both suits are pending; Terry Grodin's suit is in the discovery stage.

B. Unauthorized Disclosure

[187]. Doe v. Barrington, 729 F.Supp. 376 (D.N.J. 1990).: FACTS: The plaintiff Jane Doe's husband was arrested by local police. When he was arrested he informed the police officers that he had AIDS. Days later the plaintiff was at the scene of a minor car accident. When the plaintiff left the scene of the accident, a policeman informed the remaining neighbors that the plaintiff's husband had AIDS. The policeman also advised them to wash with disinfectant.; Upon learning this the neighbors realized that their children went to school with the Doe children. The neighbors removed their children from school, contacted other parents and the media. The neighbors also erroneously told the school board that the Doe children were infected with AIDS. The Does' identity was disclosed and they were subsequently harassed and humiliated. The Doe children were shunned at school, the Doe's landlord refused to provide maintenance service, and there was a threat of a parent boycott of the local school.; The plaintiffs brought a civil rights action for violation of their privacy rights.; ISSUES: 1. Do the plaintiffs have a right to privacy, protecting the confidentiality of the plaintiff's husband's medical condition?; 2. Did Officer Smith deprive the plaintiffs of a constitutional right by revealing that the plaintiff's husband had AIDS and did he do so under color of state law?; 3. Did the defendant Borough of Runnemede allow the unconstitutional action of a municipal employee pursuant to a municipal policy or custom and is there a direct causal link between this policy and the actions of the employee?; 4. Should the plaintiffs' motion for summary judgment be granted?; HOLDING: 1. The Does do have a constitutional right to keep private the information disclosed by the police.; 2. Officer Smith did reveal information protected by a constitutional right to privacy and did so under color of state law.; 3. The defendant Borough of Runnemede allowed the unconstitutional action of Officer Smith pursuant to municipal policy or custom. There is a direct causal link between this policy and the actions of the employee making Runnemede liable as well for the unconstitutional act.; 4. The plaintiffs' motion for summary judgment is granted.; REASONING: 1. Medical records are generally recognized as a private interest, protected by the Constitution from disclosure. A family member's medical condition is a personal matter as well, also protected from disclosure. "The sensitive nature of medical information about AIDS makes a compelling argument for keeping this information confidential."; 2. Plaintiffs have already established that their constitutional right to privacy has been violated by Officer Smith's disclosure. The policeman did not have any overriding state interest in disclosing the plaintiff's husband's HIV status. No threat of transmission was present. Therefore the Does' right to privacy was violated. Because he was acting in his official capacity of policeman, he was therefore acting under color of state law.; 3. Runnemede's failure to train its officers about AIDS indicates a deliberate indifference, which caused the violation of the plaintiffs' constitutional rights. Knowledge about AIDS, how it is transmitted, and when not to disclose the identity of an AIDS carrier are of importance to police officers who come into contact with HIV daily. That Runnemede chose not to train its officers with this necessary information in effect caused the violation and makes Runnemede liable as well.; 4. Because the plaintiffs established that their constitutional right to privacy was violated and that the defendants were liable, the plaintiffs' motion for summary judgment is granted.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I as a complaint. Since that time, the district court granted the plaintiff's motion for summary judgment on the issue of the defendants Smith and the Borough of Runnemede's liability.

[188]. Doe v. Southeastern Univ., 732 F. Supp. 7 (D.D.C. 1990). [XI.A.]: FACTS: Following a prolonged absence from the defendant university, the plaintiff's doctor informed the defendant that the plaintiff's absence from school was due to an HIV-related illness. The plaintiff alleges that this information was leaked to unauthorized persons and as a result plaintiff was harassed at the defendant university and had to transfer to another school. The plaintiff alleges that the defendant improperly notified the new school of the plaintiff's condition.; ISSUES: 1. Is the plaintiff's claim of invasion of privacy barred by the statute of limitations?; 2. Is the plaintiff's claim of intentional infliction of emotional distress barred by the statute of limitations?; 3. Is the plaintiff's Rehabilitation Act claim for discrimination barred by the statute of limitations?; 4. Is the plaintiff eligible for remedies under the Rehabilitation Act?; 5. Can the plaintiff state a claim of negligent infliction of emotional distress without alleging any physical injury?; 6. Should the defendant's motion to dismiss be granted?; HOLDING: 1. The invasion of privacy claim is barred by the statute of limitations.; 2. The claim of intentional infliction of emotional distress is barred by the statute of limitations.; 3. The claim under the Rehabilitation Act is not barred by the statute of limitations.; 4. Under the Rehabilitation Act the plaintiff would be eligible for equitable relief only.; 5. The plaintiff cannot state a claim for negligent infliction of emotional distress without alleging any physical injury.; 6. The defendant's motion to dismiss should be granted.; REASONING: 1. The D.C. Code establishes a one-year statute of limitations for intentional torts such as invasion of privacy, which the plaintiff fails to meet.; 2. The D.C. Code establishes a one-year statute of limitations for intentional torts such as intentional infliction of emotional distress, which the plaintiff fails to meet.; 3. The Rehabilitation Act does not contain its own statute of limitations but falls under the D.C. Code's three-year personal injury statute of limitations. Thus, plaintiff meets the statute of limitations for his claim under the Rehabilitation Act.; 4. Because Congress has failed to provide nonequitable damages under the Rehabilitation Act, only equitable damages are recognized by the court.; 5. The D.C. case law does not recognize a claim for negligent infliction of emotional distress absent some physical injury. Therefore, plaintiff's claim for negligent infliction of emotional distress is dismissed because it fails to assert that physical injury occurred.; 6. Because the plaintiff requested compensatory and punitive damages under the Rehabilitation Act when that Act is limited to equitable relief, the defendant's motion to dismiss is granted.

[189]. Urbaniak v. Newton, 277 Cal. Rptr. 354 (Cal. App. 1991).: FACTS: While working as a machine operator, Urbaniak suffered a head injury with secondary neck and back strain. The injury marked the onset of disabling head and back pain that prevented him from retaining any form of gainful employment. He brought a worker's compensation action against his former employer. The employer's insurance carrier arranged a neurological examination. In the course of the examination, reusable metal electrodes with sharp points drew blood. After the examination, Urbaniak disclosed that he had tested positive for HIV to the nurse, in order that she be careful sterilizing the probes. In his report, the neurologist mentioned Urbaniak's HIV status as a possible source of symptoms, discounting the possibility that the symptoms were caused by the work injury. The insurance company thereafter determined that Urbaniak was no longer entitled to compensation for treatment. Urbaniak filed an amended complaint seeking damages for disclosure of his HIV-positive status.; ISSUE: 1. Does a right to privacy arise in the disclosure of HIV status to a health care worker for the purpose of alerting the worker to the need for taking safety precautions in handling medical implements contaminated with infected blood?; 2. Does the disclosure on the record present an issue of fact with respect to allegations of invasion of privacy?; HOLDING: 1. The right to privacy prohibits disclosure of HIV status.; 2. The disclosure presents an issue of fact for trial.; REASONING: In a discovery proceeding, the examining physician owes no duty of care. While an examining physician might incur liability by disclosing confidential information irrelevant to the purpose of the examination, such liability cannot be based on invasion of privacy in the absence of special circumstances indicating that the information was given in a confidential communication between patient and physician. The asserted right of privacy here must be premised on the peculiar circumstances of Urbaniak's disclosure.

[190]. Snipes v. Mack, No. A89A0345, Ga. Ct. of App., AIDS Litigation Reporter 5/12/89.: FACTS: The complaint alleged that Snipes had libeled his former girlfriend Mack by placing three signs declaring that she had AIDS near her home and her workplace.; After a quarrel between the two, Snipes poured beer over Mack's head and threatened her. Two days later there was a large sign near Mack's home saying that she had AIDS. Another sign appeared across the street from the school in which Mack taught.; The defense tried to argue that it had not been proven that Mack did not have AIDS. Nonetheless, the jury returned a verdict for Mack, awarding her $100,000. The Georgia Court of Appeals affirmed the decision and the award.

[191]. Little Bird v. Chase, A.C.L.U. AIDS Docket, July 1990.: FACTS: The defendant, a doctor at the American Indian Free Clinic in California, allegedly disclosed the plaintiff's HIV test results to the plaintiff's dentist without the plaintiff's consent. This violated a California law protecting the confidentiality of HIV test results. The dentist had pulled one of the plaintiff's teeth the day before and canceled all follow-up visits after learning the plaintiff's HIV test results. The plaintiff was left in great pain and was denied treatment by any of the other dentists at the clinic.; The two parties reached a settlement in March of 1989.

[192]. Miller v. McAlester Regional Health Center, No. 89-83-C, U.S. Dist. Ct., E. Dist. of Okla., February 28, 1989, AIDS Policy and Law 4/5/89.: FACTS: The plaintiff underwent a series of blood tests in connection with surgery that he had at the McAlester Regional Health Center. His blood tested positive for HIV. After learning of this, several employees of the defendant allegedly informed various persons not associated with the defendant of the plaintiff's HIV status. The plaintiff claims that the disclosure violates both state and federal law regarding the confidentiality of medical records. The plaintiff seeks $1.5 million in compensatory and punitive damages for causing him to suffer from emotional distress, humiliation, and embarrassment. The plaintiff has sought to seal the case so as to protect his identity. The district court denied the motion without explanation.; STATUS: Jury trial was scheduled for April 7, 1989.

[193]. Herbert v. Amrex-Zetron No. C709912. Source: A.C.L.U. (Motions for and in Opposition to Protective Order, filed February 6, 1990).: FACTS: The plaintiff has sued his employer, alleging discrimination and harassment based on the handicap of HIV-seropositivity. Before the trial, the defendant sought to discover the HIV status of a friend of the plaintiff, who was not a party to the lawsuit. The defendant believed that if the non-party was or was thought to be HIV-positive, this may have aggravated the plaintiff's medical condition, increasing his injury. Thus, the defendant would not be liable for that portion of the injury.; ISSUE: Should the court grant a protective order to the non-party to prevent disclosure of HIV status?; STATUS: The court has not yet ruled on this motion for a protective order. The employment discrimination case is also still pending.

[194]. Dotson v. St. Mary's Hosp., No. 90017, Conn. Sup. Ct., March 30, 1989, AIDS Policy and Law 4/19/89.: FACTS: Dotson was admitted to St. Mary's Hospital and underwent a liver biopsy. He specifically asked that the blood sample that was taken not be tested for HIV. Dotson's blood was tested for HIV anyway and the results were negative. Unaware that the test had been performed, Dotson consented to the release of this information to his employer. Only later when he reviewed his personnel file at work did he learn that the tests had been done despite his lack of consent.; Dotson seeks an injunction prohibiting the hospital from testing for HIV without a patient's consent, as well as $15,000 in punitive damages.; STATUS: As of April 19, 1989, this case was awaiting trial.

C. The "Right to Know"

[195]. Doe v. Hirsch, 731 F.Supp. 627 (S.D.N.Y. 1990).: FACTS: The two plaintiffs, both New York City policemen, handled the dead body of a known intravenous drug-user. While handling the body, broken glass covered with the drug-user's blood punctured the gloves of the plaintiffs and cut their skin. Because the plaintiffs had come into contact with the drug-user's blood, they requested the autopsy reports from the Chief Medical Examiner to determine if they had been exposed to HIV. This request was denied based on a New York state statute requiring the confidentiality of AIDS-related information. The plaintiffs brought suit, alleging that their constitutional rights had been violated. The defendants contend that the plaintiffs have a remedy through the state courts.; ISSUE: Should the district court abstain from exercising jurisdiction when a remedy through the state courts may be possible?; HOLDING: The district court abstained from exercising jurisdiction in this case but retained jurisdiction pending a determination by the state court of whether the plaintiffs are entitled to relief under New York state law.; REASONING: This case involves a state statute regarding the confidentiality of AIDS-related information which is as yet unconstrued by the state courts. The statute could be interpreted so that no federal constitutional issues remain or it could be interpreted so that a constitutional issue does remain. In the former case, a federal court ruling of the present issue would be a waste of judicial resources and an encroachment on state power. Thus, a state court should interpret the statute before the federal court reaches any conclusions as to the statute's constitutionally.

[196]. In Re Lacy 780 P.2d 186 (Mont. 1989).: FACTS: Lacy applied for and received a life insurance policy worth $130,000. He had told Allstate, the insurer, that he had never used illegal drugs, had never been treated for AIDS, and had no physical or mental disorders. When Lacy died eight months later, the police found at the scene syringes and illegal drugs. The coroner's report included the findings that Lacy was a habitual intravenous drug user, was HIV-positive, and died of an overdose of illegal drugs. The coroner ruled the death to be an accident.; Allstate believed that the death may have been suicide, and believed that Lacy had materially misrepresented his medical history, in which case the beneficiary would collect no insurance proceeds. Allstate requested access to files developed during the police and coroner's investigations.; ISSUE: Is Allstate authorized to receive the information under the Montana Criminal Justice Information Act?; HOLDING: Allstate is authorized to receive the information.; REASONING: In determining Allstate's right to the confidential information, the court must balance the right to privacy and the right to know. Both are guaranteed by the Montana Constitution. "All citizens have an absolute right to observe and examine the operations of agencies within government." However, due to the importance of the right to privacy, one must make a showing as to why one is eligible to receive the information. Allstate has done so. Thus, the district court is directed to determine which materials Allstate should receive. The most information possible should be released while still giving deference to the privacy rights of the deceased.

[197]. Black v. Ferris, No. 89CG 2066 69/66, Md. Cir. Ct., Baltimore Cty., AIDS Litigation Reporter 7/18/89.: FACTS: The plaintiff is a nurse who claims to have received multiple cuts when a glass container filled with pooled blood from several surgeries was dropped. She has asked the court to compel the hospital in which this occurred to produce surgical records, to show whether she was exposed to AIDS or any other infectious diseases in the accident. She claims that her doctors need access to the hospital records so that preventative steps can be taken to guard against the development of infection.; The hospital claims that no HIV-positive or Hepatitis B patients were operated on that day. Moreover, they claim that very little blood spilled on the plaintiff and that she did not receive any observable cuts.; The defendants Dr. Ferris and Dr. Butchart ask to be dropped from the case because they have had no contact with the plaintiff.; An agreement was reached between the parties. The medical records that the plaintiff requests will be provided with the identifying information deleted.; STATUS: This case is still pending.

XI. DISCRIMINATION

A. Education

[198]. Child v. Spillane, No. 88-2162, U.S. Ct. of App. 4th Cir., AIDS Litigation Reporter 6/9/89.: FACTS: A kindergarten student with AIDS was suspended from school by the superintendent until a review of her medical records could be made to determine whether she posed a health risk. Her parents filed suit. The child was then readmitted under a new policy adopted by the school board. Under that policy, when an HIV- infected child is admitted to the school, the community is told without revealing the identity of the child. The number of those at school aware of the child's condition would be kept to a minimum. Also, the child would be required to use a separate bathroom at school and must be accompanied by an adult on all field trips.; A 4th Circuit Court of Appeals panel upheld this policy saying it did not violate the child's or the parents' constitutional right to privacy, nor did it violate the federal Family Educational Rights and Privacy Act.

[199]. Doe v. Dolton Elementary School Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988).: Update since the AIDS Litigation Project I:; The student who brought this case against his school district after being barred from attending public school classes, has died at the age of thirteen.; The district court judge had ruled that the boy should be allowed to return to class because there was no medical reason for excluding him.

[200]. Martinez v. School Bd. of Hillsborough Cty., 87-1308-CIV-T- 17(A), U.S. Dist. Ct., M. Dist. Fla., April 26, 1989, AIDS Policy and Law 5/3/89.: FACTS: The plaintiff is a neurologically handicapped child with AIDS. Her mother sought to place her in a class for the trainable mentally handicapped. Under the Education of All Handicapped Children Act (EAHCA), the school district is required to provide the plaintiff with free appropriate public education in the least restrictive environment. However, because the child continuously sucked her thumb and forefinger and because she was incontinent, the school board pressed for homebound education. Initially the district court, using the standard enunciated in the Federal Rehabilitation Act, found that because of the remote possibility of transmission of HIV, the child could attend training classes once the school district constructed a glass cubicle from which she could observe her classmates. The appellate court affirmed this instruction that a glass cubicle be built for the child.; Since that time, the child has been instructed not to suck her fingers and is being toilet-trained. Because these two hygiene problems figured in the district court's original order to build a glass cubicle, this order is no longer necessary. The district court ruled that she will not have to be isolated when she goes to school.

[201]. Doe v. National Educ. Ctr., No. 88-7902, U.S. Dist. Ct., E. Dist. Pa., AIDS Litigation Reporter 7/14/89.: FACTS: The plaintiff, who was HIV-positive, enrolled in a medical assistant program at the defendant's school. He became concerned about potential health risks when an instructor handled a urine sample without wearing gloves. He told the instructor of his infection after class. Soon thereafter, the plaintiff was dismissed from the program. He then filed suit claiming that the defendant had violated the Federal Rehabilitation Act by excluding him from the program.; The suit was settled privately. The school agreed to pay damages resulting from the exclusion and to post notices at the campus stating that it does not discriminate on the basis of physical handicap.; Subsequently, Doe's motion for court costs and legal fees was granted. Doe will receive $19,452 for legal fees, despite the defendant's argument that Doe had breached their settlement agreement by discussing the case with a Philadelphia newspaper.; Update since the AIDS Litigation Project I:; The announcement of the settlement was reported in the AIDS Litigation Project I. Since that time, the court has awarded the plaintiff court costs and legal fees.

[202]. Truax v. Washington School Dist., Source: A.C.L.U. (News clipping, November 1, 1989).: FACTS: A boy, thirteen years old, experienced discrimination and harassment by school officials in Newark, New Jersey because his sister, aged ten, had ARC.; STATUS: The Washington School District settled the case out of court for one million dollars.

B. Employment Discrimination

[203]. Walls v. Petersburg, No. 89-2357, 4th Cir. U.S. Ct. of Appeals, Va., AIDS Litigation Reporter 3/9/90.: FACTS: Walls, a supervisor of an alternative sentencing program for non-violent criminals for the Petersburg Police Department, was dismissed after refusing to fill out a questionnaire required by the police department. This questionnaire asked the employees about their marriages, divorces, children, sexual relations, any outstanding debt or judgment against the employee, and if any family members have been criminally convicted.; Walls filed suit in district court claiming that the questionnaire had a discriminatory impact on blacks in violation of Title VII and that it also violated her constitutional right to privacy.; ISSUES: 1. Should summary judgment be granted to the defendant regarding the plaintiff's Title VII claim?; 2. Should summary judgment be granted to the defendant regarding the plaintiff's constitutional claims?; HOLDING: 1. Summary judgment is granted to the defendant regarding the plaintiff's Title VII claim.; 2. Summary judgment is granted to the defendant regarding the plaintiff's constitutional claim.; REASONING: 1. The court disposed of Wall's Title VII claim because it's based on the speculation that had she completed the form, she and a statistically significant number of blacks would have been subject to some sort of job discrimination based on their response. There has been no evidence that this is what is happening. Without evidence, disparate impact cannot be proven.; 2. The court rejected the privacy claim as well. Although it felt that questions about homosexual relations are uncertain in relevancy, otherwise private sexual conduct is not beyond the reach of government proscription. The other questions on the questionnaire are all matters of public record. Therefore, no right to privacy has been violated.

[204]. Cain v. Hyatt, 734 F.Supp. 671 (E.D. Pa. 1990).: FACTS: The plaintiff, Clarence Cain, was a regional partner of defendant, Hyatt Legal Services. The defendant learned that the plaintiff had AIDS. Within a week, the defendant decided to fire the plaintiff, based on the plaintiff's doctor's statistical information on AIDS patients and not on the doctor's prognosis of the plaintiff's medical case. The doctor told the defendant that the plaintiff would be able to return to work soon, assuming all former responsibilities. The defendant believed that over time Cain would become totally incapable of performing his duties as regional partner. The decision was also based on the defendant's concern for the "morale" of the region's staff; the defendant felt that there would be apprehension that the AIDS virus would be spread in the workplace. The plaintiff remained fully healthy for a period of about nine months, in which time he could have performed his duties of regional partner without restriction.; The plaintiff alleges that the defendant's decision to remove him from regional partner violated the Pennsylvania Human Relations Act (PHRA), which prohibits employment discrimination on the basis of non-job related handicap or disability.; [In a previous court opinion, Cain v. Hyatt, 101 Bankr. 440, the judge ordered that a trustee in bankruptcy substitute as the plaintiff because the plaintiff Cain had filed a petition under Ch. 7 of the Bankruptcy Code.]; ISSUES: 1. Does AIDS constitute a handicap within the meaning of the PHRA?; 2. Was the plaintiff's AIDS disability non-job related?; 3. Did the defendant remove the plaintiff from his position of employment based on the fact that the plaintiff has AIDS, in violation of the PHRA?; 4. What kinds of remedies should be given to the plaintiff?; HOLDING: 1. AIDS does constitute a handicap or disability within the meaning of the PHRA.; 2. The plaintiff's AIDS handicap was non-job related.; 3. The defendant did remove plaintiff from his position as regional partner based on the fact that the plaintiff had AIDS.; 4. The plaintiff is awarded damages for back pay, mental anguish, and punitive damages; the total amount awarded is $157,888.18.; REASONING: 1. AIDS constitutes a handicap within the meaning of the PHRA for two reasons. First, the disease gives rise to physical symptoms that impair the infected person's abilities to engage in the major life activities as defined in the PHRA. Second, persons with AIDS suffer from society's prejudice towards AIDS victims.; 2. Plaintiff's handicap was not job-related because it did not substantially interfere with the plaintiff's ability to perform the essential functions of his job. When the plaintiff was fired, there was no evidence that showed that he had ceased to be able to perform his work responsibilities. The defendant's second reason for firing plaintiff, that other employees feared working with an AIDS sufferer, was clearly a non-job related excuse to terminate a handicapped employee. The employer's obligation not to discriminate against a handicapped person is not circumvented by other employees' unreasonable fears of that person.; 3. The defendant would not have fired the plaintiff had he not had AIDS. The evidence clearly showed that defendants had been happy with plaintiff's job performance up until they learned he had AIDS. The plaintiff's non-job related handicap was the cause of his firing.; 4. The PHRA allows broad relief for victims of discrimination. The plaintiff is entitled to back pay for the time in which he was still capable of working. The plaintiff is also entitled to compensation for the mental anguish which the defendant caused him by firing the plaintiff days after he learned he had an incurable illness. Additionally, the defendant's conduct was so outrageous that punitive damages are merited.; Update since the AIDS Litigation Project I:; This case was reported as filed in the AIDS Litigation Project I. Since that time, the case has been tried and judgment awarded to the plaintiff.

[205]. Plowman v. Cheney, 714 F. Supp. 196 (E.D. Va. 1989).: FACTS: The plaintiff was a civilian employed by the Army in Korea in 1986, when he learned he was HIV-positive. The plaintiff alleges that within two days he was forced to resign and was sent back to the United States, due to discrimination based on his HIV status. Status:; This case was appealed on a procedural point. The plaintiff did not comply with a thirty-day time limitation in which he should have initiated an administrative discrimination complaint. The court dismissed the case, but in a footnote alerted the Army administration office that they would show "good grace" by allowing the now three-year-old complaint to be initiated.

[206]. Raytheon Co. v. Fair Employ. and Hous. Comm'n 212 Cal. App. 3d 1242, 261 Cal. Rptr. 197 (1989).: FACTS: Chadbourne was employed by Raytheon and consistently received high evaluations and maximum available raises. After three years, he was hospitalized with pneumocystis carinii pneumonia and diagnosed with AIDS. When he was discharged from the hospital, he received a letter from his infectious disease specialist stating that he was able to work and posed no threat to co-workers.; Two doctors and a nurse at Raytheon examined Chadbourne and undertook a thorough investigation of HIV transmissibility. They evaluated information from Chadbourne's physician, the U.S. Department of Health and Human Services, the Centers for Disease Control, and the Santa Barbara County Health Care Services. All authorities and the Raytheon medical staff agreed that there was no risk of HIV transmission to co-workers, and Chadbourne "can return to his job." Nevertheless, Raytheon's medical director recommended that Chadbourne not be allowed to work, and that Raytheon should "beg for time." In the ensuing seven months, Chadbourne was not reinstated, and then became physically unable to work.; Chadbourne sought administrative relief from discrimination based on the handicap of AIDS. Both the Office of Federal Contract Compliance Program of the United States Department of Labor (OFCCP) and the California Fair Employment and Housing Commission (Commission) investigated his claims. The OFCCP found no discrimination, but the Commission awarded damages to Chadbourne, who had since died. Raytheon now seeks to have the court overturn the Commission's ruling.; ISSUES: 1. Is AIDS a physical handicap pursuant to the Fair Employment and Housing Act?; 2. Is there sufficient evidence that Raytheon violated the Act by discriminating on the basis of handicap?; HOLDING: 1. AIDS is a physical handicap pursuant to the Act.; 2. There is sufficient evidence that Raytheon violated the Act.; REASONING: 1. The California Supreme Court has held that a physical handicap includes any bodily condition which has a disabling effect. The disabling effect need not be immediate. AIDS certainly qualifies as a handicap. The court has "neither the authority nor the inclination" to restrict the definition of handicap.; 2. Raytheon contends that, when Chadbourne was refused reinstatement in his job in 1984, not enough was known about AIDS to consider Raytheon's actions as discriminatory. This is not borne out by the evidence of the amount of information Raytheon had. All the evidence points to discrimination, and none supports the defense that Chadbourne posed a risk to co-workers. Therefore, the Commission's order is affirmed.; Update since the AIDS Litigation Project I:; In the AIDS Litigation Project I, the judgment of the California Superior Court was reported. That court held, as this one, that a person with AIDS is handicapped within the meaning of the Act. That court did not address the issue of sufficiency of evidence.

[207]. Hummer v. Unemployment App. Comm'n, 1991 WL 1090 (Fla. App. 5 Dist.) (Jan. 10, 1991).: FACTS: Hummer was hired as a full-time salesperson. He was entitled to ten paid sick days and two paid personal days per year. Hummer told his supervisor that he needed one day off a month to attend a manufacturer's meeting for a line of products he sold on the side. When the state manager heard of this, he told Hummer that he would have to repay the company for the sick time that he had received and that absences of one day a month would not continue to be tolerated. Hummer then informed the state manager that he was not selling products on the side, but that he is HIV-positive and needed to go for medical treatment once a month. Shortly thereafter, Hummer was given the option to resign or have his employment terminated. Hummer declined to resign and did not accept the company's settlement/termination offer. The company then fired Hummer, Hummer filed for unemployment but his request for compensation was denied. On appeal from this denial, the referee found that Hummer had been discharged because of his untruthfulness and his defiance of his employer's demand that he stop being absent from work, and thus affirmed the denial of benefits. After review, the decision of the appeals referee was affirmed. This appeal followed.; ISSUE: Does Hummer's conduct, as disclosed by the record, constitute misconduct warranting the denial of benefits as defined by the unemployment compensation law?; HOLDING: Hummer's conduct was not misconduct pursuant to Florida law.; REASONING: Hummer was an exemplary employee and exhibited no disloyalty or untruthfulness except regarding his medical condition. The legislature has expressly recognized that people with AIDS suffer from irrational discrimination. This deception appears designed to protect Hummer's privacy and not to harm his employer. It was at most an error in judgement and not a willful or intentional and substantial disregard of his employer's interests or of his duties.

[208]. Sanchez v. Lagoudakis, No. 115526, 1990 Mich. App. LEXIS 199, June 19, 1990.: FACTS: The plaintiff was a waitress at the defendant's restaurant. The defendant was satisfied with her work until he began to hear complaints from patrons that the plaintiff was an "AIDS victim." The defendant told the plaintiff not to return to work until she could prove she had tested HIV-negative. The plaintiff paid for a test, received a negative result, but declined to return to work. She filed suit against the defendant, alleging discrimination under the Michigan Handicapper's Civil Rights Act (MHCRA). At the trial, the court held that the MHCRA does not extend protection to those with perceived, but not actual, handicaps; but the defendant was liable to the plaintiff for lost wages, court costs, and partial attorney's fees. Both parties appealed, but the issue of wages and costs was not raised.; ISSUE: Does the MHCRA extend to protect people with perceived, but not actual, handicaps?; HOLDING: The MHCRA does not extend to protect people with perceived, but not actual, handicaps.; REASONING: The MHCRA prohibits an employer from discriminating in any way against a person with a job-unrelated handicap. The MHCRA includes a definition of "handicap." Unlike the Federal Rehabilitation Act, the definition in the MHCRA does not expressly include perceived handicaps. The court declined to expand the MHCRA without evidence of legislative intent. If the Michigan Legislature had intended to include perceived handicaps, it would have clearly so stated. The court declined to comment on public policy arguments made by the plaintiff, and by the Michigan Organization for Human Rights, who submitted an amicus curiae. The court stated that "such arguments are best made to, and decided by the legislature."

[209]. Club Swamp Annex v. White, 561 N.Y.S.2d 609 (1990).: FACTS: Plaintiff restaurant commenced a proceeding for review of a determination that the restaurant discriminatorily discharged a waiter who was diagnosed as suffering from ARC.; ISSUE: Should a back-pay award for an unlawful employment discrimination be offset to the extent that the complainant had been similarly employed elsewhere for a period of time since discharged from defendant's employ?; HOLDING: The back-pay award should be offset.; REASONING: The authority to order reinstatement and back pay, and to award compensatory damages to a person aggrieved by an unlawful discriminatory practice, is expressly given to the Commissioner of the New York State Division of Human Rights in order to effect the purpose of the Human Rights Law. Nonetheless, wages and tips earned by a waiter after he was discriminatorily discharged are to be offset against the back pay award against the restaurant that had discharged him.

[210]. Burgess v. Your House of Raleigh, Inc. 326 N.C. 205, 388 S.E.2d 134 (1990).: FACTS: The plaintiff was a short-order cook at the defendant restaurant. When the defendant learned that the plaintiff was HIV- positive, he immediately fired the plaintiff. Both parties admit that the firing was based solely on HIV status.; The plaintiff sued the defendant under the North Carolina Handicapped Persons Protection Act (Act), alleging discrimination based on handicap. The trial court agreed with the defendant that HIV seropositivity is not a handicap under the Act, and the case was dismissed. The plaintiff now appeals.; ISSUE: Is an asymptomatic HIV-positive individual handicapped within the meaning of the Act?; HOLDING: An HIV-positive, asymptomatic individual is not handicapped within the meaning of the Act.; REASONING: Not only is an HIV-positive person not handicapped under the Act, but he is expressly excluded from the protection of the Act because HIV is a communicable disease. Although the trend in other jurisdictions seems to protect HIV-infection as a disability, this case law "is of little value to us" because the statutes are all worded differently. Also, North Carolina has always approved of employment at will and the legislature has only narrowly limited this doctrine.; To be handicapped within the meaning of the Act, one's "major life activities" must be impaired. While the plaintiff does have a "physical impairment," he failed to prove that his major life activities have been impaired. The ability to bear a healthy child and to engage in sexual relationships are not major life activities, or "essential tasks one must perform" in order to live normally. Thus, the plaintiff is not handicapped and not protected by the Act.; Furthermore, the Act contains an express exclusion from its protection of people who have communicable diseases. Thus, the plaintiff cannot claim that his communicable disease itself is a protected handicap. This would be "absurd."; The court noted that since this plaintiff filed his complaint, the North Carolina Legislature has passed a set of amendments to the North Carolina Communicable Disease Act. These amendments, effective October 1, 1989, specifically prohibit employment discrimination based on HIV status. Although the plaintiff cannot take advantage of this new law, it does indicate that the Handicapped Persons Act is not intended to protect people with HIV infections.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I. At that time, the complaint had been filed and the North Carolina Medical Society had filed an amicus brief urging a judgment for the plaintiff. The court held for the defendant, but has been criticized by courts in other jurisdictions which decided similar cases in favor of the plaintiffs.

[211]. Doe v. St. Luke's Hosp., No. 179373, Ohio Ct. of Common Pleas, Cuyahoga Cty., AIDS Litigation Reporter 5/25/90.: FACTS: The plaintiff, an HIV-positive orthopedic technician, brought suit against the hospital where he had worked, alleging that the unauthorized disclosure of his HIV status led to his firing by hospital officials.; Doe alleged that his HIV test results were shown to the hospital's director of nursing recruitment without his permission. Doe was then forced to take medical leave and denied reinstatement to his former position. Later, Doe was placed in a part-time clerk's position and received lower pay.; The jury rejected Doe's claims, and held for the defendant.

[212]. M.A.E. v. Doe, 556 A.2d 285 (Pa. Super. 1989).: FACTS: The plaintiff claims he was terminated from his employment at a restaurant because he was homosexual and because he had AIDS. His was at-will employment, in which the employer could discharge him for any reason or no reason. However, the plaintiff claims that his discharge on these grounds of prejudice and fear is against public policy and is forbidden by the Pennsylvania Human Relations Act.; ISSUE: May the plaintiff maintain a lawsuit against his employer for termination of employment that is against public policy?; HOLDING: The only proper forum to address grievances under the Pennsylvania Human Relations Act, relating to discriminatory termination of employment, is the Pennsylvania Human Relations Commission.; REASONING: The legislative intent and the Pennsylvania Supreme Court decisions indicate that there is no access to the civil courts under the Act. The complaint must be heard by the Human Relations Commission. The plaintiff did not exercise this right before his death, so his estate is now foreclosed from suit under the Act in civil court. The plaintiff could have, but did not, sue under a different statute or legal theory in civil court.; Concurrence:; In a concurring opinion, it was affirmed that AIDS falls under the protection of the Act, in the category of handicap or disability. The issue of homosexuality was not addressed.

[213]. Brunner v. Al Attar 786 S.W.2d 784 (Tex. App. Houston 1990).: FACTS: The plaintiff was an employee at the defendant's paint and body shop. The plaintiff alleges that she was fired from her job because she began to volunteer for the AIDS Foundation. She alleges that she explained to the defendant that her volunteer work would not interfere with her work hours, that she could not contract HIV from the casual contact with persons with AIDS, and that the defendant's customers would not have to know that she was an AIDS- related volunteer. She further alleges that the defendant said he would not allow her to endanger his family and employees by continuing to work at his shop while volunteering at the AIDS Foundation.; The defendant alleges that the plaintiff was terminated because she refused to work during the required hours and failed to perform satisfactorily. The plaintiff sued him for wrongful termination.; ISSUES: 1. Does the termination of an employee because she volunteers at the AIDS Foundation violate Texas public policy?; 2. Is an employee who volunteers at the AIDS Foundation "handicapped"?; HOLDING: 1. The termination of an employee because she volunteers for the AIDS Foundation does not violate Texas public policy.; 2. An employee who volunteers at the AIDS Foundation is not "handicapped".; REASONING: 1. The plaintiff had employment which was terminable at will for any reason or none. She claims, however, that termination because of her AIDS-related volunteer work is wrongful termination because it is against Texas public policy. The Texas Supreme Court has limited public policy exceptions to the termination at will doctrine to only two situations. An employee at will may be terminated for any reason except for the refusal to perform an illegal act, or because the employer wishes to avoid paying an earned pension. The plaintiff does not fall into one of these exceptions, and the Court of Appeals held that only the Supreme Court could create a new exception.; 2. The plaintiff also claimed a violation of a Texas statute prohibiting discrimination in employment based on handicap unrelated to work. However, the plaintiff did not allege that she is handicapped, so she cannot maintain a cause of action under this statute.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I. Since that time, the trial judge granted summary judgment to the defendants, and this appeals court upheld that ruling against the plaintiff.

[214]. Benjamin R. v. Orkin Exterminating Co., 390 S.E.2d 814 (W.Va. 1990).: FACTS: The plaintiff worked as a pest control inspector for the defendant company. In January 1987, the plaintiff learned that he was HIV-positive, and told his supervisor his status in July 1987. The plaintiff claims he was fired the next month because of his HIV infection. The defendant claims the plaintiff resigned. The plaintiff filed a complaint with the West Virginia Human Rights Commission. The Commission certified the plaintiff to sue the defendant in a state court for the alleged employment discrimination based on a handicap, pursuant to a West Virginia statute. The defendant removed the case to a federal district court. The district court asked the Supreme Court of Appeals of West Virginia to make a determination of the meaning of "handicap" so that the district court could determine whether the plaintiff could maintain his claim. Issue:; As a matter of West Virginia law, is a person who tests positive for HIV handicapped within the meaning of the Human Rights Act?; HOLDING: As a matter of West Virginia law, a person at any stage of infection with HIV, with or without symptoms of illness, is a person with a handicap within the meaning of the Human Rights Act.; REASONING: The West Virginia Human Rights Act has two requirements for a handicap. There must first be a physical or mental impairment. The court opinion includes a comprehensive discussion of the medical facts pertaining to each stage of HIV infection, as well as court decisions and law review articles from throughout the country. All of these sources indicate that, even at its earliest stages, HIV infection is a physical impairment of the body's blood and immune systems.; The second requirement for a handicap is that the impairment must "substantially limit one or more major life activities." These activities include, but are not limited to, communication, socialization, employment and self-care. The court found that HIV infection substantially impairs socialization, because "almost all HIV patients" are withdrawn, depressed, or suicidal. The court also found "unpersuasive" a decision in North Carolina (Burgess v. Your House of Raleigh) which stated that the ability to bear a healthy child and engage in sexual relations were not "major life activities."; The court also found a public policy reason to include HIV infection within the definition of handicap. By preventing employment discrimination, early HIV testing and disclosure of results will be encouraged, enabling those who must take precautions to do so. "From a public health standpoint, it is crucial for people at all stages of HIV infection to be assured of legal protection from unlawful discrimination." By characterizing HIV infection as a handicap, it falls within the protection against discrimination provided by the Human Rights Act.; Concurrence:; One judge wrote a concurring opinion "to recognize and discuss the entirely rational fears of the general public." This judge has calculated that the chance of contracting HIV from casual contact is "no higher than between one in one-hundred-thousand and one in a million." However, "it is not beyond possibility that official U.S. Government information is slanted and not entirely accurate." The concurrence, which is longer than the majority opinion, surveys the scientific literature on AIDS "in an effort to justify today's decision in terms that satisfy those who are legitimately fearful that the legal conclusions we reach are not justified by science." [emphasis in original].

[215]. Kansas Comm'n on Civil Rights v. Telecheck of Kan., Inc., No. 89-C-479, Kan. Dist. Ct., Johnson Cty., April 28, 1989;

[216]. Telecheck of Kan. Inc. v. Kansas Comm'n on Civil Rights, No. 88-C-13337, Kan. Dist. Ct., Johnson Cty., April 28, 1989, AIDS Policy and Law 5/17/89.: FACTS: This case was the first AIDS-related discrimination case that came before the Kansas Commission on Civil Rights. An employee who was dismissed, allegedly for having AIDS, brought suit against his employer. The Commission found that the employer had dismissed the employee on the basis of a physical handicap. The Commission ordered that the employee be reinstated, be given $20,000 in back wages, and $2,000 for pain, suffering, and humiliation.; The employer sought a state court review of the Commission's findings. The Commission then filed an enforcement action against the employer so that Telecheck would comply with the Commissioner's decision.; The employee has since settled his claim with his employer for $40,000. As a result of this settlement both the employer's and the Commission's suits have been dropped.; Update since the AIDS Litigation Project I:; The employee's case was reported in the AIDS Litigation Project I. Since that time the two parties have reached a settlement. The two suits brought by the employer Telecheck and the Commission have been dropped.

[217]. Shawn v. Legs Co., No. 89-04346, N.Y. Sup. Ct., N.Y. Cty., AIDS Litigation Reporter 5/11/90.: FACTS: Choreographer Michael Shawn and the producers of the show "Legs Diamond" have settled their suit. Shawn brought this HIV discrimination case after he was fired from the show. Shawn alleged that he was fired from the show because he was HIV-positive, despite the fact that he had completed all preproduction work on the choreography.; Update since the AIDS Litigation Project I:; The filed complaint was reported in the AIDS Litigation Project I. Since that time, the parties settled for $175,000. Four months after accepting this settlement, Shawn died of AIDS-related causes. This case was one of the largest AIDS-related cases filed involving the entertainment industry.

[218]. Doe v. Office of Job Corps, No. 89-0736-MC, U.S. Dist. Ct., Dist. Mass., April 4, 1989, AIDS Policy and Law 4/19/89.: FACTS: The Massachusetts Attorney General has filed a complaint on behalf of Jane Doe, a 20-year-old woman who was dismissed from a Job Corps training program because she had tested positive for HIV.; The complaint claims that the Job Corps policies of compulsory HIV testing and dismissal if test results are positive are discriminatory acts in violation of the Rehabilitation Act of 1973 and the Job Training Partnership Act. The complaint also claims that these policies are unconstitutional violations of the rights to privacy, due process, and protection against unreasonable search and seizure.; The defendant has announced a change in policy that continues HIV testing but allows for a case-by-case determination of whether the individual may continue in the program. The Attorney General maintains that these changes do not rectify the violations with which the defendant has been charged.; STATUS: This case was awaiting trial as of April 19, 1989.

[219]. Doe v. Alameda Contra Costa Transit Dist., No. 654177-4, Cal. Super. Ct., Alameda Cty., AIDS Litigation Reporter 8/25/89.: FACTS: The plaintiff filed suit claiming that he was discriminated against in violation of the California Health and Safety laws and the state Unruh Civil Rights Act after his superiors learned that he was HIV-positive.; Doe had asked his superiors for some time off to care for a friend who was dying of AIDS. When he returned to work Doe claims that his fellow workers had been told that he was HIV-positive and some refused to stand near him. Also, Doe was transferred to another department with a lower wage and less possibility of advancement. Doe has applied for three other jobs with his employer, but he alleges that they were all denied to him and given to people with less experience and skill.; Doe seeks $500,000 in damages for being unjustly harassed and demoted because he is HIV-positive.

[220]. Griffin v. Tri-County Metropolitan Trans., No. A64191, Or. App. Ct., AIDS Litigation Reporter 5/25/90.: FACTS: Griffin was fired from his job as bus dispatcher fifteen months after he informed his superiors that he was HIV-positive, despite his thirteen years of exemplary job performance. Griffin alleged that after it was known that he was HIV-positive, his performance was judged more harshly and that he was discriminated against.; Griffin was awarded $100,000 in damages by a Circuit Court jury. Tri-Met has appealed this award and Griffin has cross- appealed.; Griffin sent the details of his suit to the U.S. Department of Health and Human Services' Office for Civil Rights in order to force Tri-Met to comply with federal discrimination law. The U.S. Department of Transportation is investigating the situation.; The Appellate Court has ordered that the plaintiff's attorney fees as provided by the defendant should be higher than usual because of the difficulty of the case.

[221]. Mulholland v. Nordstrom, Inc., No. 90-2-08707-7, Wash. Super. Ct., King Cty., AIDS Litigation Reporter 5/11/90 .: FACTS: The plaintiff was a salesman at a Washington Nordstrom Department store. After a four-day sick leave, Mulholland met with his superiors and informed them that he was HIV-positive but was feeling well and able to return to work. His superiors then suggested that Mulholland go home. The plaintiff alleges that he was escorted out the back door and was not allowed to return to the store. When he did try to return he was told that his job had been filled and that no other positions were available. His insurance and other benefits were canceled.; Despite Mulholland's exemplary eighteen-month employment record, the defendant claims that Mulholland's termination was legitimate and part of a labor dispute.; Mulholland seeks an undetermined amount for emotional distress and lost compensation. He also has asked for reinstatement to his former position.; STATUS: This case awaits trial.

[222]. Jensen v. Casa Toltec Or. Comm'n of Labor. Source: A.C.L.U. and The Oregonian, December 14, 1989.: FACTS: The plaintiff was a waitress at the defendant's restaurant. The day after she appeared on television, to talk about her HIV infection, she was fired from her job. She appealed to the Oregon Labor Commission. After a two-day hearing, she was awarded $1000 damages.; ISSUES: 1. Did the defendant discriminate on the basis of HIV status?; 2. Is the recommended damages award of $1000 appropriate?; HOLDING: 1. The defendant discriminated against the plaintiff on the basis of HIV status.; 2. The damage award should be increased from $1000 to $2500.; REASONING: The Oregon Commissioner of Labor increased the award recommended by the Commission hearings officer. The Commissioner said, "we want it to be very clear there is no danger to the public or to co-workers" from an HIV-positive waitress.; STATUS: The restaurant may appeal this decision in a court of law.

[223]. Racine Educ. Ass'n v. Racine Unified School Dist., ERD Case # 8650279, Wis. Labor & Industry Review Comm'n, AIDS Policy and Law 7/26/89.: FACTS: A teachers' association challenged the school district's policy to exclude from work staff members with AIDS and to place them on sick leave or leave of absence until a determination is made about further work assignment. The teachers claimed that the policy was discriminatory because it required them to use sick leave or take leave without pay when they were able to work, and when they did not create a risk of contagion to their fellow workers or students.; The administrative law judge's ruling that this policy was discriminatory was upheld by the three commissioner panel. People with AIDS are considered handicapped under state law and the school district's policy illegally discriminates against people with AIDS. The policy was based on the invalid assumption that AIDS can be transmitted through casual contact. This policy also violated state law prohibiting sexual preference discrimination; the goal of the policy was to exclude homosexuals from teaching positions.; Update since the AIDS Litigation Project I:; The complaint was reported in the AIDS Litigation Project I. Since that time the case has been decided awarding judgment to the teachers' association.

[224]. In Re D., No. GA-00024030987-DN, November 30, 1989. Source: New York City Commission on Human Rights.: FACTS: The complainant was a waiter at the respondent's restaurant. The complainant alleges he was harassed by co-workers and his manager, and then fired, due to the perception that he had AIDS. He filed a complaint with the New York City Commission on Human Rights.; ISSUE: Did the restaurant discriminate on the basis of a perceived disability, in violation of the New York Human Rights Law?; HOLDING: The restaurant violated the Human Rights Law by discriminating on the basis of a perceived disability.; Order:; The restaurant was ordered to pay damages to the complainant for lost wages and emotional distress. The restaurant was also ordered to post notices stating that it does not discriminate on the basis of handicap or any other basis, and to obtain training for its employees in HIV transmission and AIDS discrimination.

[225]. In Re A., No. GA-00167020389-DN, July 19, 1990. Source: New York City Comm'n on Human Rights.: FACTS: The complainant was a longtime employee and manager of a retail store. He was treated for AIDS-associated cancer and despite his sickly appearance he was able to work. He told his employer he had cancer; he did not say he had AIDS, but several other store employees were known to have AIDS or be HIV-positive. He alleges that the employer refused to accommodate his handicap and fired him because of it. When he expressed surprise and disappointment at being fired, the employer agreed to reconsider the firing. However, the next day the employer told the complainant that he had one week left to work. The complainant alleges that he was replaced by a person the employer knew to be HIV-positive but who was asymptomatic. The employer alleges that the complainant was fired because he was difficult to get along with and was a poor worker. The complainant filed a complaint with the New York City Commission on Human Rights.; ISSUE: Is the employer liable for discrimination based on the handicap of the perception of AIDS?; HOLDING: The employer is liable for discrimination based on the handicap of the perception of AIDS.; Order:; The Commission ordered the employer to pay damages for lost wages and emotional distress.

[226]. Connecticut Human Rights Comm'n v. Respondent, No. 86-10215, Conn. Human Rts. Comm'n, September 5, 1989, AIDS Policy and Law, 10/18/89.: FACTS: The Connecticut Human Rights Commission has found that an employer illegally fired an employee because that employee was suspected of having AIDS. The state anti-discrimination statute prohibits the discrimination of individuals who are physically disabled or the discrimination of those who are perceived to be physically disabled.; The employee was fired by a travel agency following the death of his lover of an AIDS-related illness. The Commission found that the employee was perceived to be carrying HIV and was dismissed for that reason. The employee was awarded damages, and the employer was ordered to educate its employees concerning the need for nondiscriminatory conduct towards HIV-positive persons.

[227]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business Development.: FACTS: Complainant received a letter from Respondent confirming his selection for an emergency care worker position. Three days before he was to report to Respondent for further processing, Complainant contacted Respondent's personnel office and informed them that while at present he was asymptomatic and perfectly healthy, he had tested HIV positive in 1986. Complainant was then instructed to report to Respondent's clinic for an HIV test. Complainant did and the test came back positive. Respondent then refused to instate Complainant as an emergency care worker.; Respondent contends that the Complainant was only an applicant for employment and that the application process was not finalized because Complainant concealed information on this initial medical questionnaire. Respondent further contents that it had a legitimate business reason for not hiring Complainant: 1) Complainant was not physically fit to perform the duties of an emergency care worker; 2) Complainant would pose an undue risk of harm to himself and others if hired as an emergency care worker; and 3) Respondent is not obligated to accommodate Complainant's physical handicap by placing him in a position other than that of an emergency care worker.; ISSUE: Was Complainant fit to perform the duties of an emergency care worker and could her perform those duties without unreasonably endangering his health or that of others; and thus was discriminated against by the Respondent when Respondent refused to hire him based on his physical handicap (HIV positive)?; HOLDING: Complainant is fit to perform the duties of an emergency care worker and would not pose an undue risk to himself or others in the performance of those duties. Thus, Respondent discriminated against Complainant when it refused to hire him based on his physical handicap (HIV positive).; REASONING: The Department found that the Respondent did not submit credible evidence to support its contention that Complainant was not fit to perform his duties. Respondent does not require that applicants submit to AIDS testing as a prerequisite for selection to the position of emergency care worker. The medical evidence submitted by Complainant made it overwhelmingly clear that he was presently asymptomatic and had a very slight chance of coming down with any of the opportunistic diseases normally associated with an active case of AIDS.; Moreover, respondent failed to submit credible evidence that based on his HIV status, Complainant would pose an undue risk to himself or to others in the performance of his duties as an emergency care worker. For the total reported number of job related injuries incurred by the D.C. Respondent for the years 1986, 1987 and 1988, injuries involving possible loss of body fluids represented only 6.8%, 7.3% and 5.3% of the respective yearly totals. Additionally, personnel of the D.C. Respondent are instructed and trained to wear protective gloves whenever they come in contact with blood or other bodily fluids while performing emergency medical services.; The Department affirmed its original finding that the Respondent's reasons for not hiring Complainant were a mere pretext offered to conceal actual discrimination based on his HIV status.

[228]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business Development.: FACTS: HIV-positive Complainant was hired by Respondent. Complainant stated that because of the side effects of his medication he could not guarantee that he would be at work every day, but was otherwise fit to perform his duties. Complainant fractured several ribs and was advised by his physician to take two weeks off from work. Upon return to work he was certified as fit for duty. However, Respondent advised him because of his physical condition he could either resign, look for other work, or be terminated.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment and threatened with termination based on his physical handicap (HIV positive)?; STATUS: Predetermination Settlement.

[229]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business Development.: FACTS: Complainant was hired by Respondent as a waiter and was later transferred to the position of Cook's helper. During the course of his employment Respondent became aware that Complainant had AIDS. Complainant became ill and missed one week of work. Complainant provided Respondent with medical certification of his illness. Upon Complainant's return to work he was informed that he had been terminated.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment based on his physical handicap (HIV positive, AIDS)?; STATUS: Administrative closure--Complainant failed to proceed with the investigation of his case.

[230]. Complainant v.Respondent, District of Columbia Department of Human Rights and Minority Business Development, (Complaint).: FACTS: Complainant alleged that he was hired by the Respondent as a restaurant manager. Complainant became ill and was subsequently hospitalized. Complainant was diagnosed as having HIV-related cancer. Complainant further alleged that Respondent was already aware of his HIV status and so upon returning to work he only informed Respondent of the cancer diagnosis. Complainant continued to work on a part-time basis for three weeks. He was then informed by Respondent that his position was abolished and that his services were no longer needed.; Respondent maintains it had no knowledge of Complainant's HIV status but admits that Complainant did inform it that he had a tumor on his back. Respondent further maintains that Complainant's position was eliminated in order to reduce expenses and that his job responsibilities were absorbed by other employees.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment and terminated based on his physical handicap (Lymphoma Cancer, AIDS).; HOLDING: Respondent's reason for terminating Complainant's employment was a pretext offered to conceal actual discrimination based on his physical handicap (Lymphoma Cancer).; REASONING: The Department found that credible evidence presented by Complainant demonstrated that Respondent did not abolish Complainant's position. Rather, Respondent merely terminated Complainant from the position of restaurant manager. The evidence presented by Complainant included affidavits from two of Respondent's managerial employees. Furthermore, the Department found that Respondent's statement that it eliminated Complaint's position in order to cut expenses was suspect in light of the fact that Respondent hired and promoted management level employees at salary levels equal to or greater than that of complainant both just before and up to two months after Complainant's termination.

[231]. Complainant v. Respondent, District of Columbia Department of Human Rights and Minority Business Development.: FACTS: Complainant had worked for Respondent as a realtor on a commission basis for five years. Complainant informed Respondent that he had AIDS. Approximately one month later Respondent's sales manager asked Complainant if he was taking any medication. Complainant told her he was taking AZT. Approximately one month after this conversation Complainant received a letter of termination from Respondent stating that he had been terminated because of complaints from another real estate office and because he had displayed disrespectful behavior. Complainant denies that any complaint about his job performance had been received by Respondent or that he had behaved disrespectfully.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment and terminated based on his sexual orientation (homosexual) and physical handicap (AIDS)?; STATUS: Administrative closure--dismissed for lack of jurisdiction since Complainant was an independent contractor and not an employee of Respondent.

[232]. Complainant v. Respondent, District of Columbia Department of Human Rights and Minority Business Development.: FACTS: Complainant had worked for Respondent for approximately five months when he received a performance evaluation. The evaluation stated that he needed to improve his job performance. Three weeks after receiving this evaluation, Complainant became ill and was hospitalized. Respondent discovered that Complainant had AIDS and his employment was terminated while he was still in the hospital. Respondent maintains that Complainant was terminated because his job performance did not meet their standards.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment and terminated based on his physical handicap (AIDS)?; STATUS: Predetermination settlement.

[233]. Complainant v. Respondent, District of Columbia Department of Human Rights and Minority Business Development.: FACTS: Complainant began working for Respondent and subsequently informed Respondent that he was HIV-positive. Complainant also submitted a doctor's certificate regarding his physical condition and the limitations on his ability to perform his duties due to side effects from medication. Complainant filed a complaint with the DC Department of Human Rights and Minority Business Development alleging that he was being harassed by his supervisor about his medically excused absences. A negotiated settlement agreement was reached. Complainant was again served with written reprimand from his supervisor without prior warning concerning alleged excessive absenteeism and tardiness. Complainant had provided Respondent with a doctor's excuse for each of his absences in excess of three days in compliance with Respondent sick leave policy. Complainant was taking six different medications and had also been diagnosed as clinically depressed due to stress. Complainant's supervisor informed him that if his attendance did not improve he would be terminated. Two days later Complainant was placed on suspension by his supervisor without pay for poor attitude, attendance and work performance and was again threatened with termination.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of his employment and harassed by his supervisor based on his physical handicap (HIV positive)?; STATUS: Predetermination settlement.

[234]. Chapoton v. Majestic Caterers, Chancery No. 87-688W, 16 Va. Cir. _____. Cir. Ct. Roanoke, VA, June 7, 1989; SOURCE: Ken Labowitz, Esq., Alexandria, Va.: FACTS: Action under Virginia Rights of Persons with Disabilities Act: Asymptomatic HIV-positive waiter sued restaurant-employer when diagnosis was discovered.; HOLDING: The court held that the Act applied to asymptomatic HIV infection, but that the Act was sole the remedy available for discrimination against those covered. The courts dismissed other claims for tortious dismissal of employment-at-will employee.

[235]. Goodfellow v. Quinn Patent Drawing Serv., Chancery No. 16627, Alexandria Cir. Ct., filed March, 1986. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va.: FACTS: Employment discrimination action. Employee advised employer of AIDS diagnosis and was immediately terminated from employment. Employer asserted that AIDS was not a disability under the Virginia Act.; HOLDING: AIDS was a "disability".; STATUS: Settled.

[236]. International Telemarketing v. Crowley, Civil Action No. 88- 103-A, U.S.D.C., E.D. Va., at Alexandria, transferred from District of Nebraska, February 1988. SOURCE: Kenneth Labowitz, Esq.. Alexandria, Va..: FACTS: Telemarketing company had written employment contract with vice president that voided benefits under contract if employee contracted AIDS. When employee did contract AIDS, employer brought action for damages and to void contract.; STATUS: Settled.

[237]. Wolfe v. Tidewater Pizza, Chancery No. 87-662, Norfolk Cir. Ct. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va..: FACTS: This is an action under Virginia Rights of Persons with Disabilities Act. An employee was fired based upon a rumor that he had AIDS. He was rehired after providing negative test results. The case was dismissed to expedite an appeal on the theory that an uninfected person is not "disabled" for purposes of this Act.; STATUS: The trial court rendered no opinion, but granted dismissal of action. cert denied, Virginia Supreme Court.

[238]. Shaffer v. Holiday Inn, Circuit Court. SOURCE: The Washington Blade, Washington, D.C., December 21, 1990.: FACTS: Plaintiff was fired from his job as a bartender at the Holiday Inn and filed an AIDS discrimination complaint with the county. Plaintiff alleges defendant used a pretext (i.e., drinking on the job, etc.) for dismissing him after he filed an AIDS discrimination complaint. In that complaint plaintiff alleged defendants harassed him for taking days off and requesting changes in his work schedule because of problems associated with his AZT medication. Plaintiff asserts that federal and county laws list AIDS as a physical handicap and thus prohibit the hotel from discriminating against him because of his illness. The hotel rehired plaintiff who now seeks lost salaries, tips and attorney fees.; STATUS: Settled.

C. Housing and Property

[239]. Christopher v. Barry 715 F. Supp. 1143 (D.D.C. 1989).: FACTS: The plaintiff is a fifteen-year old ward of the District of Columbia, pursuant to the District's neglected child laws. The plaintiff was removed from his foster home due to a family tragedy there. He was placed temporarily in Saint Elizabeths Hospital, where he learned that he was HIV-positive. Despite court orders to do so, the District of Columbia did not place the plaintiff in a new foster home for six months. The plaintiff claims he was treated differently from other wards due to the handicap of HIV infection, and he sued the District of Columbia for the violation of his civil rights.; ISSUE: Should the federal district court abstain from hearing this case because the state's interests are so great that a federal court should not intervene?; HOLDING: The district court should abstain from hearing this case because of overwhelming state interests.; REASONING: A three-pronged test was set out in an earlier case to determine whether a federal court should abstain. Here, the court determined: The District of Columbia neglect proceeding involving the plaintiff constitutes an ongoing proceeding; the neglect proceeding concerns state interests; and the neglect proceeding is an adequate forum in which the plaintiff may raise his constitutional civil rights claim. Because the three prongs are satisfied, the case was dismissed from the federal court.

[240]. Moreau v. Kemp, No. C89-3469-FMS, U.S. Dist. Ct., N. Dist. Cal., September 29, 1989. Source: A.C.L.U.: FACTS: The plaintiff, Housing for Independent People (HIP), applied to Housing and Urban Development (HUD) for funding to be used to acquire twenty-four units of rental housing. The housing was to be used by people with AIDS and ARC in the Santa Clara area. HUD refused to fund HIP on the grounds that persons with AIDS or ARC are not handicapped, as required by the federal funding program.; ISSUE: Are persons with AIDS or ARC handicapped for the purposes of HUD-funded housing?; HOLDING: Persons with AIDS or ARC are handicapped for the purpose of HUD funding.; STATUS: The court ordered HUD to reconsider its decision, with the new assumption that persons with AIDS or ARC are handicapped. HUD was ordered to notify the plaintiff and the court of its decision and its reasons. On November 3, 1989, HUD informed the court that it still would not fund the HIP project. There is likely to be an appeal.

[241]. Watkins v. Pillin, Cal. Super. Ct., AIDS Litigation Reporter 3/9/90.: FACTS: The plaintiff's request for a restraining order has been granted, prohibiting defendants Pillin and Smith from harassing the plaintiff because he has AIDS.; Watkins alleges that former neighbors Pillin and Smith, who are both disc jockies at gay bars, have harassed him because he has AIDS ever since they noticed that he had stopped going to work. Watkins alleged that the two neighbors made prank telephone calls, tossed a hammer through Watkins' window, and made noises through the ventilation ducts trying to exacerbate his sickness whenever they could hear that Watkins was vomiting.; Pillin and Smith, who have since moved from the building, have been ordered to cease such conduct and to stay away from Watkins for three years.

[242]. West 22nd St. Assoc. v. Thomas, N.Y. App. Term, N.Y. Cty., AIDS Policy and Law 9/20/89.: FACTS: A landlord sued to evict the mother and sister of a rent- stabilized lessee who died of AIDS. In order to qualify to retain possession of the apartment, the family member must reside with the lessee for two years or more. Ms. Thomas had lived with her son for nineteen months. She moved in when he became incapable of caring for himself due to his AIDS illness.; The plaintiff claimed that the requirement of a two year residency is unconstitutional because it discriminates against people with AIDS whose prognosis is usually for less than two years.; ISSUE: Is the rent-stabilization law constitutional when applied to family members of people with AIDS?; HOLDING: This law does not have an unconstitutionally disproportionate impact just because the life expectancy of persons with AIDS is limited and therefore this law can be upheld.; REASONING: This law does not violate due process or equal protection provisions of the State Constitution. It differentiates between transients and more permanent occupants of apartments. Just because there may be disparate impact on family members who move in to care for the terminally ill does not mean that there has been discrimination.

[243]. East 10th St. Assoc. v. Estate of Stuart Goldstein, No. 38481, N.Y. Sup. Ct., App. Div., 1st Dep't, AIDS Litigation Reporter 4/13/90.: FACTS: The appellant is the homosexual partner of Stuart Goldstein, a man who died of AIDS-related illnesses. The two men had been sharing a rent-stabilized apartment for the past twelve years. The partner who died had been named on the lease. Upon Goldstein's death, the landlord sought to take possession of the premises from the appellant.; Under New York City rent stabilization laws, surviving spouses and/or family members receive extended eviction protection. The appellant argued that his life partnership with Stuart Goldstein entitled him to receive this family member status.; ISSUE: Should the appellant be granted family member status so as to protect him from the eviction proceedings?; HOLDING: The appellant should be granted family member status so as to protect him from the eviction proceedings.; REASONING: The appellant had entered a life partnership with the former named tenant and the apartment had become their permanent family home. Furthermore, Goldstein's family testified that the appellant had been accepted into their family and was considered the spouse of their relative Goldstein.; Additionally, the case of Braschi v. Stahl Assoc. is convincing precedent. In that case, a surviving gay partner had been considered family for the purposes of rent-control laws. Although this is a rent-stabilization situation, the court held that the difference between the two regulatory schemes was not significant enough to call for a different definition of family. Therefore, the appellant is granted family status for the purposes of the rent-stabilization laws.

[244]. Daniels v. Christofoletti, 542 N.Y.S.2d 482 (1989).: FACTS: Daniels is a blind resident of an adult home. He was admitted to the hospital, diagnosed with AIDS, and was released five weeks later. The hospital had determined Daniels needed no special care and could return to the adult home. However, the landlord has refused to readmit Daniels.; ISSUES: 1. Can a person with AIDS be evicted from an adult home without judicial proceedings?; 2. Does a person with AIDS pose an imminent risk of death or danger to other residents of an adult home?; HOLDING: 1. No person can be evicted from an adult home without a special judicial proceeding.; 2. There is no evidence that a person with AIDS poses an imminent risk of death or danger to other residents of an adult home.; REASONING: 1. The landlord does not dispute that he has acted illegally in refusing to readmit Daniels to his residence without a special judicial proceeding.; 2. The evidence shows that the landlord is wrong in his belief that Daniels needs medical care not available at the adult home. There is no evidence, either, that Daniels poses a threat to the other residents. The landlord claims that, in the past, Daniels' blood has been found in bathrooms shared by other blind residents.; However, "whether an individual is afflicted with AIDS or not should not be the impetus for establishing good hygiene practices."; Therefore, Daniels must be readmitted to his room at the home.

[245]. McKinney Found. v. Fairfield, No. B 90-115, U.S. Dist. Ct., Dist. Conn., AIDS Litigation Reporter 3/23/90.: FACTS: The plaintiff, a foundation named after the late U.S. Representative Stewart McKinney who died of an AIDS-related illness, has filed suit against McKinney's home town of Fairfield. The Foundation is attempting to establish a home for seven AIDS patients in Fairfield. The plaintiff alleges that the City is stalling their plans for this home by asking the Foundation to obtain a special exemption to the zoning regulations.; The Foundation claims that the City is violating the Federal Fair Housing Act, the Rehabilitation Act of 1973, the Connecticut Zoning Enabling Act, and the Connecticut State Constitution. The plaintiff asks that the City be permanently enjoined from requiring the Foundation to obtain a special zoning exemption.

[246]. Pruden v. Maier, No. 89-25165, Dist. Ct., Harris County, Tex. Source: LAMBDA.: FACTS: The AIDS Foundation was awarded over $500,000 by the City of Houston, to purchase an apartment complex to be used for housing for persons with AIDS. The Foundation contracted to buy a complex, and was awaiting the closing date when the neighbors filed suit to prevent the sale. The trial judge advised the neighbors that their case would be strengthened if they added a nuisance claim. They did so. The judge then told the parties not to close on the complex until such time in the future that he could make a decision. The AIDS Foundation removed the case from state to federal court. The federal court refused to delay the closing until after the trial, so the closing occurred as planned. However, the trial is still pending.; ISSUE: Does the new Texas Fair Housing Act prevent the nuisance claim, which seeks to exclude persons with AIDS solely on the basis of handicap?; STATUS: The decision on this issue is pending.

[247]. In re Terence Cardinal Cooke Health Center, A.C.L.U. AIDS Docket, July 1990.: FACTS: This religiously-affiliated health care provider seeks a license to provide housing and residential care to persons with AIDS. However, the Health Center does not wish to provide counseling regarding contraception and abortion for their patients, as is required by state regulations.; STATUS: A decision regarding licensing is pending.

[248].Whitman Walker Clinic v. Sibay, Chancery No. 89-957, Arlington Cir. Ct., December 1988, SOURCE: Kenneth Labowitz, Esq., Alexandria, Va.: FACTS: This is an action under the Virginia Housing Law. An AIDS clinic was denied a lease for a house for use as a group home for persons with AIDS. The landlord defended that AIDS was not a handicap covered by law. The judge rejected the landlord's argument, upholding the application of the Virginia Housing Law.; STATUS: The suit was subsequently dismissed when the County provided a replacement site.

[249]. ACT-UP v. Walp, No. 1:CV-91-0148, U.S. Dist. Ct., Mid. Dist. of P., 1991 U.S. Dist. LEXIS 1468, 2/6/91.: FACTS: The plaintiff is the organization ACT-UP whose goals include raising public awareness of the AIDS crisis and to petition the government to provide more funding to combat AIDS. The plaintiff alleges that state police attempted to infiltrate an ACT-UP meeting in Philadelphia the day before the group planned a protest at the Pennsylvania governor's inauguration. The plaintiff alleges that after the inauguration speech a large number of ACT-UP protestors were barred from entering the Capitol building by a mounted state police officer. Lastly, the plaintiff asserts that they were denied access to the visitor's gallery at the Chamber of the House of Representatives a week later, when the gallery was locked to all visitors. The plaintiff filed suit asking for damages, a declaratory judgment that the defendant's conduct was unconstitutional, and a preliminary injunction against further violations of the plaintiff's constitutional rights.; ISSUES: (1) Was the closing of the visitor's gallery of the House of Representatives a violation of the plaintiff's members' first amendment rights? (2) Is this violation sufficient to warrant injunctive relief?; HOLDING: (1) The closing of the visitor's gallery was a violation of the plaintiff's members' first amendment rights. (2) Injunctive relief should not be granted to the plaintiff.; REASONING: (1) The gallery is a public place or a limited public forum and government may therefore not discriminate between speakers on the basis of the content of their speech. The Pennsylvania Constitution states that the gallery area shall remain open to the public. Although visitors in the gallery are not invited to speak, there is communicative activity making the gallery a limited public forum. Visitors are visible to the legislators, communicating to the legislature that their decisions are being scrutinized. Also, visitors such as the plaintiffs would have made their presence known by wearing clothing with the words "ACT-UP" printed on the front. Wearing of such t-shirts, though symbolic in nature, is considered protected speech.; The government admitted that the closing of the gallery was aimed at the plaintiff ACT-UP. Such a content-based restriction is allowed only to protect a compelling government interest. The only interest the government put forward was preventing disruption in the legislative chambers. However, this interest could be served through provisions already in place for removing unruly visitors from the gallery. Thus, the government interests were insufficient to justify prohibition of protected speech.; Therefore, because the government restricted access to a public forum to prohibit protected speech, the plaintiff's first amendment rights were violated.; (2) Although the court concluded an injunction might be in order to guarantee protection of the plaintiff's first amendment rights, it could not grant one for procedural reasons. The parties responsible for closing the gallery were not named as parties to this suit so they may not be enjoined.; STATUS: The Court of Appeals affirmed the District Court's decision.

D. Public Accommodations, Commercial Establishments

[250]. Jasperson v. Jessica's Nail Clinic, 216 Cal. App. 3d 1099, 265 Cal. Rptr. 301 (1989).: FACTS: The plaintiff went to Jessica's Nail Clinic to make an appointment for a pedicure for the following day. While he was there, two clinic employees overheard him tell a third party that he had AIDS and had just gotten over pnuemocystis carinii pneumonia. The next day, a clinic employee telephoned the plaintiff to cancel his appointment, and he was refused an opportunity to reschedule. The plaintiff then phoned the owner, Jessica. He claims she denied that he was refused an appointment because he had AIDS. Jessica claims that she told him she could not force her employees to give him a pedicure and she testified that her employees were upset to learn he had AIDS.; The plaintiff filed a complaint against the nail clinic based on the violation of a West Hollywood City Ordinance that prohibits discrimination against persons with AIDS. The nail clinic raised the defense of justification, claiming they were exempt from the ordinance due to "a deadly risk to their health." The plaintiff sought an injunction to prevent Jessica's Nail Clinic from denying him pedicure services.; Trial Court Proceedings:; At the trial, the plaintiff introduced three expert witnesses with extensive and impressive experience in AIDS education, research, and patient care. They testified that 99.999% of the blood cells of an infected person do not contain HIV and so it is unlikely that a single drop of blood would be infectious. The defendant introduced, as a medical expert, a physician with no training or experience with AIDS. He testified that the health and political communities are lying to the public about AIDS. He believes persons with AIDS should be quarantined because HIV can be transmitted by touching or shaking hands.; Additional testimony was given by a teacher at a cosmetology school. She described the pedicure procedure and testified that in observing 10,000 pedicures, she had seen bleeding only once. Jessica, the nail clinic owner, testified that bleeding was occasional or common. The two agreed that the sterilization procedures for the pedicure instruments, if followed, would inactivate HIV.; The trial court denied the injunction. The court concluded that the ordinance preventing discrimination against persons with AIDS was not invalid, but where there is "risk of death, however minimal" the ordinance should not be enforced. The court found that the risk of HIV transmission during a pedicure was "marginal" but even this risk is unacceptable. Thus, the nail clinic could choose to discriminate against persons with AIDS. The plaintiff appealed.; ISSUES: 1. Since the plaintiff has since died, should the case be dismissed as moot?; 2. Did the trial court err in deciding that the ordinance may or may not be enforced according to the court's discretion?; 3. If the court has discretion to decline to enforce the ordinance, is the "any risk" standard appropriate?; 4. Does the enforcement of the ordinance violate the Nail Clinic's equal protection rights?; HOLDING: 1. Although the plaintiff has died, the court should decide this case.; 2. The trial court erred in deciding that it may decline to enforce a valid ordinance.; 3. The standard of "any risk" of harm is not proper, but rather "significant risk" is the standard.; 4. This ordinance raises no equal protection issues.; REASONING: 1. A case that would normally be dismissed as moot, but which raises issues of continuing public interest that are likely to recur, may be heard and decided by the court. Although the plaintiff has died, the validity of AIDS anti-discrimination ordinances is likely to be a recurring issue. Also, because persons with AIDS have a high mortality rate and cases move through the courts at a "sometimes glacial pace," it is appropriate to decide this case.; 2. The clear language of the ordinance contains nothing to permit a court to decline to enforce it. The trial court correctly determined that the ordinance was constitutional, within the legislature's authority, and valid in all ways. The trial court has no authority to decline to enforce it in certain circumstances.; 3. Even if the trial court did have the authority to decline to enforce the ordinance, the standard for the decision must be that a contagious disease poses a "significant risk" of transmission. The trial court found a "marginal" chance of "any risk" and not a significant risk.; 4. The equal protection clause ensures that one class of persons will not face arbitrary discrimination by statute. The statutes passed by the legislature must bear a rational relationship to a legitimate purpose in order to avoid a challenge on equal protection grounds. "The test is based on distinctions drawn, not distinctions which a judge feels should have been drawn." Here, there is no valid equal protection claim for three reasons. Jessica's Nail Clinic was not singled out for discriminatory treatment, rather, they violated the ordinance and thereby became the object of the litigation. Second, the tremendous discrimination against persons with AIDS is a "real and pressing concern." The ordinance bears a rational relationship to the purpose of protecting persons with AIDS. Third, there is a valid public health purpose related to the ordinance. By reducing or discouraging discrimination against them, persons with AIDS may be more willing to disclose their illness to those uninfected people who can and should take reasonable precautions against viral transmission. "Since there is neither a vaccine nor a cure for AIDS, precautionary measures are vital to preventing the spread of the disease."; Because there is no reason to declare the ordinance invalid, the judgement of the trial court is reversed, and the injunction preventing Jessica's Nail Salon from denying services to persons with AIDS is granted.

[251]. Kupona v. Chicago Transit Auth., No. 89-C-6908, U.S. Dist. Ct., N. Dist. Ill. Source: A.C.L.U. (Complaint filed September 13, 1989).: FACTS: The plaintiff in this class-action case is a non-profit organization devoted solely to providing AIDS education to communities of color. They allege that the defendant, the Chicago Transit Authority, refused to sell advertising space in its vehicles to the plaintiff. The ad which the CTA refused depicted a couple holding a condom package, and was worded, "Sex Without Condoms + Drug Abuse = AIDS." The defendant allegedly found the ad inappropriate and "too Black-oriented." The plaintiff has filed a complaint in district court.; ISSUES: 1. Does the refusal to accept an ad promoting AIDS education in communities of color violate the constitutional rights to free speech and equal protection?; 2. Did the defendant make its decision to refuse the ad without due process or compelling justification?; STATUS: This case is awaiting trial.

[252]. Gittelson v. Jacumba Found., No. WEC 134 479, Cal. Super. Ct., Los Angeles Cty., AIDS Litigation Reporter 6/23/89.: FACTS: The plaintiff attempted to attend a weekend retreat organized by the defendants. The defendants returned the plaintiff's check and informed him that because they knew that the plaintiff was HIV positive, they could not permit the plaintiff to attend. Their reason for refusing the plaintiff, they allege, was based on the possible reaction of other members of the outing. The plaintiff sued, claiming that the defendants' actions violated his civil rights under state law and city ordinances which prohibit discrimination against HIV-infected people by businesses.; In a motion to strike this complaint, the defendants argue that they are considered a church and are tax exempt as a religious organization. As such, they are not a business and so do not fall under the statutes upon which the plaintiff brings this claim. Additionally, as a church the defendants have the right to be selective in maintaining their membership.; The plaintiff alleges that at no time did the defendants represent themselves to the plaintiff as a religious organization. The plaintiff has revised his complaint, arguing that the defendants are not a true religious organization.; Update since the AIDS Litigation Project I:; The original complaint was reported in the AIDS Litigation Project I. Since that time the defendant has responded with a motion to strike the complaint and the plaintiff has amended his complaint. The case awaits trial.

[253]. In Re B., No. GA-0002403987-DN, December 21, 1989. Source: New York City Comm'n on Human Rights.: FACTS: The respondent is a residential drug treatment facility which is not equipped to handle special medical needs. The treatment program consists of five levels of rehabilitation, followed by graduation. The complainant is an intravenous drug user who is HIV-positive. He was admitted to the facility and was progressing without problems.; When residents return from outside doctors' appointments, they are asked about their medical conditions by a record keeper. The complainant told her he was HIV-positive. The complainant alleges that the director of the facility asked the record keeper for a list of the residents who had told her they were HIV-positive. He allegedly then told her and another woman to find them someplace else to live. The complainant alleges he and two other HIV-positive residents were subsequently discharged. The complainant filed this complaint with the New York City Commission on Human Rights.; ISSUE: Did the drug treatment facility discriminate on the basis of the handicap of HIV?; HOLDING: The treatment facility discriminated on the basis of handicap, in violation of the Human Rights Law.; Order:; The facility must pay damages to the Complainant. The facility must post notices stating it does not discriminate on the basis of handicap or any other basis, and must train all staff and residents on HIV transmission and AIDS discrimination. The facility must also provide to the Commission the name of everyone who is denied admission or is discharged and the reason, on a monthly basis for one year.

[254]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business.: FACTS: Complainant visited Respondent's offices in an attempt to determine where his check had been sent. Complainant was accompanied by his mother, father and friend. Complainant was discussing the situation with his case worker when she discovered from his file that he was HIV-positive. She then stated to him: "If I knew you had AIDS, I would not have let you move close to me". For the remainder of the interview the case worker held a folder up to her face each time the Complainant spoke to her.; Respondent denies Complainant's allegations. Respondent maintains that Complainant came into its offices with a belligerent attitude and was intentionally and repeatedly coughing on his case worker and that this is why she asked him to move away from her.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of the services and accommodations he received while at Respondent's place of business?; STATUS: Undecided--case pending before the City Administrator of Washington, D.C.

E. Health Care

1. Failure to adequately treat or care for HIV-infected patients.

[255]. Weaver v. Reagen, 886 F.2d 194 (8th Cir. 1989).: FACTS: The plaintiffs are members of a class comprised of persons with AIDS who also qualify for Medicaid benefits. They brought suit against the Director of the Missouri Department of Social Services for denying them coverage for the costs of the drug AZT under the Medicaid plan.; Missouri did provide coverage for AZT for those recipients who either had a history of cytologically confirmed pneumocystis carinii pneumonia or an absolute T4 helper/inducer lymphocyte count of less than 200. This was also what the Food and Drug Administration's (FDA) approval statement suggested. One of the plaintiffs did not meet the requirements to receive AZT although his physician stated that it was medically necessary for his treatment.; The district court granted the plaintiffs' motion for summary judgment and enjoined the Missouri officials from denying coverage of AZT to the plaintiffs. The defendants appealed.; ISSUE: Should the Missouri Medicaid program be allowed to deny coverage of AZT to AIDS patients who are eligible for Medicaid and whose physicians have certified that AZT is medically necessary treatment?; HOLDING: The Missouri Medicaid program cannot deny coverage of AZT to AIDS patients who are eligible for Medicaid and whose physicians have certified that AZT is medically necessary treatment.; REASONING: The FDA approval statement of the drug AZT, upon which the defendant justifies its eligibility requirements, is not a persuasive basis of justification. "FDA approved indications were not intended to limit or interfere with the practice of medicine nor to preclude physicians from using their best judgment in the interest of the patient." AZT is the only approved treatment for AIDS and doctors commonly prescribe AZT for patients not meeting the FDA criteria. Medicaid plans are required by law to provide recipients with necessary medical treatment, largely determined by the medical judgment of the attending physician. The plaintiffs have shown that medical treatment with AZT is common and that it is necessary for the treatment of AIDS. Therefore, the appellate court affirms the district court's decision that the defendants may not deny coverage of AZT to AIDS patients who are eligible for Medicaid and whose physicians have certified that AZT is medically necessary. However, the district court's order was too broad in that it did not require certification from the patient's doctor that treatment with AZT is medically necessary.; Update since the AIDS Litigation Project I:; The district court's decision was reported in the AIDS Litigation Project I. Since that time, the defendant appealed. The appellate court affirmed, modifying the judgment of the district court.

[256]. Dallas Gay Alliance v. Parkland Memorial Hosp., A.C.L.U. AIDS Docket, July 1990.: FACTS: The defendant hospital operated a clinic which provided AZT and pentamidine. The clinic had a waiting list. While their names were on the waiting list, two people died.; The Alliance sued for elimination of the waiting list and to prohibit the hospital from using "bed control" as a means of precluding treatment.; Update since the AIDS Litigation Project I:; Since this case was reported in the AIDS Litigation Project, the defendants corrected the discriminatory practices that were alleged in the complaint and the federal court dismissed the case as moot.

[257]. Glanz v. Vernick, 750 F. Supp. 39, (Mass. 1990).: FACTS: The plaintiff's decedent sued the defendants alleging violation of 504 of the Rehabilitation Act for their refusal to perform elective ear surgery because he had tested HIV-positive. He claimed to have suffered severe prolonged pain in his right ear, due to the defendant's failure to perform surgery. The pain disappeared only when surgery was performed elsewhere. The plaintiff sought compensatory damages for the pain and suffering and emotional distress caused by the delay in receiving corrective surgery, along with punitive damages and attorney's fees.; ISSUE: 1. Does the complaint state a cause of action for which relief can be granted?; 2. Which damages and claims survive the plaintiff's death?; HOLDING: 1. Since the patient was "otherwise qualified" for surgery and the surgery was denied because of unjustified consideration of the handicap (HIV-positive status), the complaint does state a cause of action for which relief can be granted.; 2. Only the plaintiff's claim for compensatory damages and attorney's fees survive his death.; REASONING: 1. Allegations that health care providers refused to perform elective surgery on a patient because he had tested HIV-positive stated a cause of action for which relief could be granted under the Rehabilitation Act.; 2. State law rather than federal law garnered the issue of whether action abated upon death of an alleged victim of discrimination, and under Massachusetts state law, a claim for compensatory damages survives death.

[258]. Rhodes v. Charter Hosp., 730 F. Supp. 1383 (S.D. Miss. 1989)..: FACTS: The plaintiff, Rhodes, is a person with AIDS. He was admitted to the defendant hospital, a private psychiatric hospital. After approximately two weeks of treatment, the hospital staff quarantined the plaintiff. He was isolated from all other patients and was restricted to his room at all times, and a sign was placed on the plaintiff's door indicating that he suffered from an infectious disease. Personnel entering the room always wore masks, gowns, and gloves.; The plaintiff alleges intentional discrimination against him in violation of various federal statutes. He also brings a state law claim for intentional infliction of emotional distress and seeks damages for emotional distress and mental anguish.; ISSUES: 1. Can the plaintiff recover damages under the Rehabilitation Act?; 2. Has the plaintiff stated a claim under the Civil Rights Act?; HOLDING: 1. The plaintiff cannot recover damages under the Rehabilitation Act and therefore fails to state a claim under that section.; 2. The plaintiff has not stated a claim under the Civil Rights Act.; REASONING: 1. Damages for emotional distress are not available under the Rehabilitation Act. Because the plaintiff bases his claim for damages on emotional distress, he has failed to state a claim under the Rehabilitation Act.; 2. The plaintiff's other claim, based on the Civil Rights Act, should be dismissed as well. This claim must allege that the defendant, while acting under color of state law, violated the plaintiff's rights. In this case the defendant is a private entity and has not been shown to be a state actor. Therefore, the plaintiff fails to state a claim under the Civil Rights Act.; Update since the AIDS Litigation Project I:; The complaint as filed was reported in the AIDS Litigation Project I. Since that time, the district court has dismissed both of the federal claims. The district court also dismissed the pendent state-law claim upon the condition that the defendant submit to the jurisdiction of the state court, if the plaintiff chooses to pursue the state-law claim.

[259]. Wilson v. Reno County, No. 88-1641-T, U.S. Dist. Ct., Dist. Kan., 1990 U.S. Dist. LEXIS 18236, 12/19/90.: FACTS: The plaintiff was a registered nurse with the Reno County Home Health Agency. Her duties were to give home health care to the agency's patients. When a patient with AIDS was referred to the agency, the plaintiff and two other nurses were assigned to the case. The nurses were required to evaluate the patient's weight, temperature, pulse, blood pressure, and general condition, to provide information regarding medications and to provide support for the patient's morale. One of the nurses refused to visit this patient and was subsequently fired. The plaintiff expressed hesitancy in going to see the patient and delayed making the visit. She also expressed public support for the other nurse's choice not to visit the patient in a letter addressed to the Reno County Commission, which was also distributed to the news media. In it the plaintiff also expressed her belief that the presence of an AIDS patient was a matter of public concern. The identity of the patient was later leaked to the public by an unknown source.; The plaintiff's relationship with her employers continued to become strained and she finally resigned a little more than a month after the patient had been referred. The plaintiff brought this suit under a theory of constructive discharge, allegedly in retaliation for her exercising her first and fourteenth amendment rights.; ISSUES: (1.) Is the plaintiff's first amendment claim time-barred by the statute of limitations? (2.) Did the plaintiff's employers' acts deprive her of a protected interest by damaging her future ability to obtain employment in the health field? (3.) Should the federal court dismiss the state law claims to be heard by the state court?; HOLDING: (1) The plaintiff's first amendment claims are time-barred by the two year statute of limitations. (2) The plaintiff's employers did not deprive her of a protected liberty interest by damaging her future ability to obtain employment in the health field. (3) The federal court will dismiss the plaintiff's state law claims without prejudice.; REASONING: (1) Because the plaintiff filed her suit more than two years after the date of her resignation, her first amendment claims are time-barred. (2) The plaintiff was unable to show that the defendant exhibited any actions that stigmatized or otherwise damaged the plaintiff's reputation, nor was she able to show that any future employment opportunities were affected. Therefore, the plaintiff could not prove that her liberty interest had been damaged. (3) Because the plaintiff's federal claims were dismissed, the court dismissed the pendant state law claims without prejudice in the interests of comity and federalism, which demand that state courts try their own law suits.

[260]. Elstein v. State Div. of Human Rights, No. 293, N.Y. Sup. Ct., App. Div., 4th Dep't, AIDS Litigation Reporter 6/8/90.: FACTS: A man with AIDS had sought treatment from Dr. Elstein, an orthopedic doctor, for a back problem. Although Elstein had been the man's physician for years, Elstein referred him elsewhere, claiming that he was not equipped to treat someone with AIDS.; The Supreme Court had ruled that Dr. Elstein's office was a private facility and that the Division of Human Rights (DHR) therefore had no authority to act on this AIDS discrimination complaint.; The Appellate Division of New York's Supreme Court reversed this decision. The Appellate Division held that the DHR has the authority to decide whether a doctor's office is a place of public accommodation or not and has remanded the case to the DHR.; Update since the AIDS Litigation Project I:; The Supreme Court ruling that the DHR had no authority to act on this complaint was reported in the AIDS Litigation Project I. Since that time the Appellate Division has reversed the decision.

[261]. Doe v. Howard Univ., No. 88-3412[SS], U.S. Dist. Ct., Dist. D.C., AIDS Litigation Reporter 10/31/89.: FACTS: The plaintiff has settled her claim with the Washington D.C. hospital. The hospital has agreed to establish new policies improving its treatment of persons with AIDS. This is the first time a hospital has agreed not to discriminate against persons with AIDS.; The plaintiff had claimed that the hospital had discriminated against her because she was HIV-positive by failing to give her required psychiatric care.; Update since the AIDS Litigation Project I:; The complaint was reported in the AIDS Litigation Project I. Since that time the parties have settled privately.

[262]. Walsh v. Cimanec, No. 608500, Cal. Super. Ct., San Diego Cty., AIDS Litigation Reporter 7/14/89.: FACTS: Walsh is a person with AIDS. He had revealed his condition on a "patient information form" when he sought treatment by the defendant, a chiropractor. The employees of the chiropractor told the plaintiff that the defendant would not treat the plaintiff.; The plaintiff claimed that the defendant's refusal to treat him constituted discrimination under a San Diego ordinance prohibiting AIDS-related discrimination by landlords, employers, and businesses.; On June 22, the judge issued a permanent injunction barring the defendant from discriminating against HIV-positive patients. The judge's order determined that the defendant's practice is considered a business under the local code in question and that the ordinance is not preempted by state law.; That same day, a $5,000 private settlement was reached between the two parties. The defendant may not deny a person who is HIV- positive medical care but the defendant may seek a referral from the person's doctor before treatment.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I as a filed complaint. Since that time the judge has issued a permanent injunction against the defendant barring him from denying medical care to HIV-positive patients. The original parties have settled.

[263]. Robertson v. Chen, No. 1989SP0061, Ill. Dep't of Human Relations, AIDS Litigation Reporter 7/28/89.: FACTS: The plaintiff, whose son is HIV-positive, attempted to see the defendant, a dentist, for an abscessed tooth. An attendant asked the plaintiff if anyone close to him had AIDS. After he had replied affirmatively the dentist came into the room wearing a mask, gloves, and other protective clothing and looked into the plaintiff's mouth from a distance of two feet. The defendant told the plaintiff that he would not treat the plaintiff unless he underwent HIV testing and had negative results.; The plaintiff filed this complaint with the State Human Rights Commission. Since that time, the parties have settled. The defendant will pay the plaintiff $3,000 in damages and legal costs and will post notices in his office that he does not deny medical care to anyone who is HIV-positive. The defendant has also agreed never to discriminate against persons who are HIV-positive or require that as a condition of treatment, a patient must be tested for HIV.

[264]. Nassau Cty. v. Axelrod, No. 3197/90, N.Y. Sup. Ct., Nassau Cty., AIDS Litigation Reporter 7/13/90.: FACTS: The New York Supreme Court held that the State Department of Health (DOH) has the jurisdiction to determine whether nursing homes are in violation of state laws which ban discriminatory practices. This ruling has led to a consent agreement between the DOH and Nassau County nursing facilities. These facilities had been charged with employing the discriminatory practice of rejecting AIDS patients. The agreement states that these facilities will no longer reject all patients who are HIV-positive and will begin training their staff on how to care for HIV-positive patients.

[265]. Doe v. American Nursing Home, No. 89-45979, N.Y. Sup. Ct., N.Y. Cty., 11/2/89, AIDS Policy and Law 11/15/89.: FACTS: The complainant, a homeless man who had been admitted to a nursing home on the condition that he did not have AIDS, subsequently tested positive for HIV. He was discharged from the nursing home.; The man filed a complaint against the nursing home with the Law Enforcement Bureau of the New York City Commission on Human Rights. The bureau found probable cause to credit the allegations and forwarded the case to the Commission's Hearings Division for trial. The administrative law judge denied the nursing home's motion to dismiss, which was based on the argument that nursing homes are not covered by the City's human rights law. The administrative law judge ruled that nursing homes are public accommodations within the meaning of the law and thus are obligated to abide by its nondiscriminatory provisions.; The nursing home has since settled with the man for an undisclosed sum of money. The nursing home did not admit to any violation of the state public accommodation law but did pledge not to discriminate against HIV-infected patients or applicants. Additionally, the nursing home has pledged to train its staff on HIV-related issues, to bring its facility into compliance with state regulations concerning HIV-infected nursing home residents, and to report to the Commissioner periodically.

[266]. Doe v. A Skilled Nursing Facility, No. 9K-P-D-89-135752, N.Y. Div. of Human Rts., AIDS Litigation Reporter 7/13/90.: FACTS: A settlement has been reached between the unidentified nursing home and the anonymous plaintiff, who had alleged that the nursing home discriminated against him because he was HIV-positive. The nursing home agreed to pay the plaintiff $16,750. The nursing home also agreed to make a statement that it will not discriminate against HIV-positive patients in admission to its facility or access to its service. The Division of Human Rights will continue to monitor the defendant to ensure that it complies with discrimination regulations.

[267]. Vadnais v. Vernick, No. 89-0748-MA, U.S. Dist. Ct., Dist. Mass. Source: A.C.L.U. (Complaint filed April 5, 1989).: FACTS: The plaintiff went to Beth Israel Hospital for surgical ear drum repair. The doctor learned that the plaintiff was HIV- positive, and allegedly refused to perform the surgery. The doctor allegedly told the plaintiff that he will not do elective surgery on patients with AIDS, and wrote on the plaintiff's chart that he had AIDS. However, the plaintiff was never diagnosed with AIDS. The doctor allegedly disclosed the plaintiff's HIV status to other doctors at the hospital. The plaintiff has filed a complaint in the district court against the doctor and the hospital.; ISSUES: 1. Did the defendants refuse to provide medical treatment because of the plaintiff's handicap of seropositivity?; 2. Did the defendants violate the plaintiff's right to privacy by breaching confidentiality related to HIV status?; STATUS: This case is awaiting a trial date.

[268]. Baby Angel v. Koch, U.S. Dist. Ct., S. Dist. N.Y. Source: A.C.L.U. (Complaint filed July 13, 1989).: FACTS: Five special needs "boarder babies" sue on behalf of themselves and others similarly situated. The babies are HIV- positive and are in New York City hospital wards, healthy enough to be discharged but with no place to go. They claim that the defendants, city officials, discriminate against them on the basis of handicap and violate a variety of constitutional rights.; ISSUES: 1. Does the City violate the "boarder babies'" right to substantive due process by failing to provide adequate care and treatment?; 2. Does the City violate the right to substantive due process by failing to protect family integrity by providing support services to the natural families of the "boarder babies"?; 3. Does the City violate the right to procedural due process by depriving "boarder babies" of the rights guaranteed by the laws of the City of New York?; 4. Does the City violate the right to equal protection by failing to provide homes to "boarder babies" while providing homes for healthy children?; 5. Does the City violate the Social Security Act because the regulations for Aid to Families with Dependant Children require the City to care for "boarder babies"?; 6. Does the City violate the Rehabilitation Act of 1973 by failing to provide services to handicapped persons?; 7. Does the City violate the New York State Constitution by denying various rights to "boarder babies"?; 8. Does the City violate New York State statutes and regulations which guarantee certain rights to every citizen of New York?; STATUS: This complaint awaits trial.

[269]. Doe v. Kahala Dental Group., No. 89-3436-11, Cir. Ct., 1st Circ., Haw. Source: A.C.L.U. (Complaint filed November 6, 1989).: FACTS: The plaintiff has brought the first AIDS-related discrimination case in Hawaii. The plaintiff alleges he went to the defendant dental office for root canal or a crown. When the defendant dentist learned that the plaintiff's physician was an infectious disease specialist, the dentist allegedly feared that the plaintiff was HIV-positive. He performed only temporary dental work, and allegedly refused to perform any invasive procedure until the plaintiff's physician certified that the plaintiff was HIV- negative. Both the plaintiff and his physician refused to release HIV status information. The dentist scheduled another appointment for the plaintiff but later canceled it. A new appointment was made, during which the dentist did more temporary work but continued to refuse to do invasive procedures. The plaintiff has filed a complaint seeking damages and an injunction to prevent the dental group from requiring HIV status.; ISSUES: 1. Is a dental office a place of public accommodation within the meaning of the anti-discrimination law of Hawaii?; 2. Did the dental group discriminate on the basis of the perceived handicap of HIV infection?; 3. Did the dentists in the group conspire to discriminate against people with HIV infections?; STATUS: This complaint is awaiting trial.

[270]. San Francisco v. California, No. 910062, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 9/8/89.: FACTS: The City of San Francisco has filed suit against the state seeking reimbursement for the treatment of four AIDS patients who were Medicaid recipients. The City claims that the State's failure to reimburse these costs violates a contract between the Department of Health Services (DHS) and San Francisco General Hospital. The contract provides that DHS will pay a specified rate for each day the hospital provides inpatient services. The City also alleges that the State's acts are in violation of the Federal Medicaid Act.; The patients were each hospitalized at the city-run San Francisco General Hospital and were treated with drugs. The City alleges that these treatments were medically necessary and that medical records provided the required documentation.; The state claims that the treatments were either unnecessary or too extensive and that they lacked documentation of the need for acute hospital care.; STATUS: This case is pending.

[271]. Patient v. Ellenbogen, No. 89-848, Va. Cir. Ct., Arlington Cty., AIDS Litigation Reporter 9/22/89.: FACTS: The plaintiff filed suit against a dentist who refused to treat him because the plaintiff was HIV-positive. The plaintiff claims that Ellenbogen violated the Virginia Code, which prohibits places of public accommodation from discriminating or denying full access to persons with a disability.; The plaintiff was in the examining chair at the defendant's office and the hygienist was about to clean his teeth without using surgical gloves. Before she did so, the plaintiff informed her that he was HIV-positive. The dentist then informed the plaintiff that he would not treat the plaintiff but he would refer the plaintiff to someone who would. On one other occasion the plaintiff called this dentist's office to schedule an appointment and told them he was HIV-positive. The plaintiff was informed that the defendant did not treat HIV-positive patients.; The plaintiff seeks attorney fees and unspecified damages.

[272]. In Re C., No.118-90, Sup. Ct. N.Y., City of Westchester, March 21, 1990. Source: New York City Comm'n on Human Rights.: FACTS: The complainant alleges that he was refused dental treatment because he has AIDS. The dentist is self-employed and works alone in his office. He does not advertise and accepts only patients referred by friends, colleagues and patients. The complainant had been a patient and friend of the dentist for over two years. When the complainant told the dentist he was HIV-positive, the dentist told him he would feel uncomfortable treating him and referred him to several other dental offices.; The complainant filed a complaint with the New York City Commission on Human Rights. After an investigation, the Commission found that the dentist had violated the New York Human Rights Law by discriminating on the basis of handicap. The Commission found that either an expression of discomfort or a referral alone would not necessarily have been evidence of discrimination, but when taken together the result is a denial of services. The Commission also found that a dental office is a place of public accommodation; therefore the Human Rights Law is applicable.; The Commission ordered the dentist to pay damages to the complainant, and to post notices that his office does not discriminate on the basis of handicap or any other basis. The dentist brought an action in state court to set aside the Commission's order.; ISSUES: 1. Is this dental office a place of public accommodation pursuant to the New York Human Rights Law?; 2. Did the dentist violate the Human Rights Law by denying services solely on the basis of the handicap of HIV infection?; HOLDING: 1. This dental office is not a place of public accommodation.; 2. The dentist did not violate the Human Rights Law.; REASONING: 1. The dentist does not advertise or take patients without a verifiable referral. The Human Rights Law does not explicitly include all dental offices or all dentists. The court found that common sense must be a guide to determining which dental offices are public. This office is actually a private club.; 2. The Commission does not have jurisdiction over a private club, so the order must be set aside regardless of the evidence of discrimination. However, the court found that there was insufficient evidence that the complainant was denied services. The dentist did not refuse to treat and the complainant did not attempt to schedule an appointment. Thus, the order of the Commission is vacated in its entirety.

2. Refusal to provide premises to professionals providing services to persons infected with HIV

[273]. Association of Relatives and Friends of AIDS Patients v. Regulations and Permits Admin., No. 90-1672 (JAF), U.S. Dist. Ct., Dist. P.R., 1990 U.S. Dist. LEXIS 7529, June 13, 1990.: FACTS: The plaintiffs (AFAPS) attempted to acquire a zoning permit for a hospice for AIDS patients amidst much community opposition. The defendant (ARPE) denied the request for a zoning permit because the property on which the hospice would be located is zoned for agricultural use. No public hearing was given to decide whether the permit should be granted. At no time before the permit was denied was it mentioned that agricultural zoning would be a possible barrier. Instead, other reasons for possibly denying the permit were given, such as the negative publicity and the dangers of flooding the hospice and thereby spreading the disease. No special use permit was given to the plaintiffs despite the fact that the surrounding land, though zoned for agricultural use, is not being used for agricultural purposes.; ISSUES: 1. Should the district court abstain from deciding a case involving the decision of a local zoning board?; 2. Did the defendant show discriminatory intent in denying the zoning permit for the AIDS hospice?; 3. Is the effect of the defendant's action unnecessarily discriminatory and will it have a disparate impact on plaintiffs even if no intent to discriminate is shown?; 4. Have the defendants violated the Fair Housing Act and should they be enjoined from refusing the permit?; HOLDING: 1. The district court does not abstain from deciding this issue involving the decision of a local zoning board.; 2. The defendant showed discriminatory intent by denying the zoning permit for the AIDS hospice.; 3. The defendant's acts have been unnecessarily discriminating and have had a disparate impact on the plaintiffs.; 4. The defendants have violated the Fair Housing Act and are enjoined from refusing the zoning permit to the plaintiffs.; REASONING: 1. Abstention is not proper in this case where an appropriate federal question has been presented and complicated questions of local law are not involved.; 2. Several factors support the conclusion that the defendant had discriminatory intent in denying the zoning permit. The defendant was heavily lobbied to deny the permit by local opposition and political leaders. Prior to the denial of the permit, there is no evidence that the agricultural zoning classification was a factor in the decision-making process. Also, the defendant had the authority to grant a special use permit but did not. Finally, the agricultural use zoning was selectively enforced against the plaintiffs. Together, these factors imply that the defendant had discriminatory intent in denying the permit.; 3. Several factors support the conclusion that the defendant's act had a disparate impact on the plaintiffs. First, by denying the permit, handicapped individuals with AIDS have been denied a place to live. Secondly, the prejudice against AIDS patients contributed to the defendant's decision to deny the special use permit, thus perpetuating the prejudice. Additionally, the defendant has offered no significant evidence proving that the zoning plan would be impaired by allowing the hospice to operate. Finally, the defendant cannot justify denying the type of relief requested by the plaintiffs. All they ask is a permit for an already existing structure that is ready for occupancy.; 4. The ARPE has been influenced by the community's misunderstandings regarding AIDS and has become a party to the discrimination. The Fair Housing Act does not allow such discrimination. The defendants are therefore enjoined from refusing to grant a special use permit to the plaintiffs.

[274]. Seitzman v. Hudson River Assocs., 143 Misc. 2d 1068, 542 N.Y.S.2d 104 (1989).: FACTS: Seitzman and another entered into a contract with the defendants to purchase a cooperative apartment for use as a medical office. When the defendants learned that Seitzman treats patients with AIDS, the defendants refused to fulfill their contractual duty to change the premises from a residence to a medical office.; After a jury trial, a verdict was entered for the physicians on a claim for breach of contract and for discrimination in violation of the New York Human Rights Law. The jury also determined that the physicians were entitled to punitive damages for the discrimination claim. A "mini" trial was held to help the jury decide the amount of damages due. The defendants repeatedly claimed that no punitive damages were due.; ISSUE: Are punitive damages available for discrimination in violation of the Human Rights Law?; HOLDING: Punitive damages are available for discrimination in violation of the Human Rights Law.; REASONING: The defendants contended that the Human Rights Law does not authorize punitive damages. The Human Rights Law prohibits discrimination in housing or commercial space on the basis of handicap. The Law provides the option of bringing a claim before the Human Rights Commission or before a civil court. Each of these options provides different remedies. The court relied on statutory language and case precedent to hold that the civil courts may award punitive damages under the Human Rights Law. While the Human Rights Commission may not award punitive damages, case precedent "appears to open the door in New York, at least a crack" for civil courts to do so.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I. At that time, the trial was pending and the trial court ordered a temporary injunction to prevent the defendants from selling the property to a third party. Since then, the trial has been held and the physicians have won each of their claims.

[275]. In re Bloomingdale Conval. Ctr., 558 A.2d 19 (N.J. Super. A.D. 1989).: FACTS: The New Jersey Commission of Health issued a certificate of need for the establishment of the Bloomingdale Convalescent Center, a nursing home for the long term care of up to 120 geriatric patients, on the condition that the Wanaque Convalescent Center convert 120 beds for the treatment of patients with AIDS.; The Borough of Wanaque filed suit to enjoin the Wanaque facility form receiving any patients with AIDS. Both the Boroughs of Wanaque and Bloomingdale appealed the Commissioner's issuance of a certificate of need for the Bloomingdale Convalescent Center. The Borough of Wanaque has settled its injunction suit and has withdrawn its notice of appeal.; The Borough of Bloomingdale pursues its appeal of the Commissioner's decision although no AIDS patients will be housed or treated in Bloomingdale. It alleges that the Commissioner has failed to comply with statutes and regulations of the Department of Health.; ISSUE: Should the Commissioner's issuance of the certificate of need for the establishment of the Bloomingdale Convalescent Center be reversed because of failure to comply with applicable statutes and regulations of the Department of Health?; HOLDING: The Commissioner's issuance of the certificate of need for the establishment of the Bloomingdale Convalescent Center should be reversed because of failure to comply with applicable statutes and regulations of the Department of Health.; REASONING: The Commissioner's decision does not state why she felt an administrative review was appropriate in this case and therefore why the Statewide Health Coordinating Council was not consulted. However, the legislature has determined that the perspective of the Statewide Health Coordinating Council is important to the review process. Additionally, the regulations of the Commissioner of Health require notice to the Health Systems Agency of an application for a certificate of need, which the Commissioner failed to do. These oversights in procedure by the Commissioner cause the court to reverse the decision which issued the certificate of need to the Bloomingdale Convalescent Center. The matter is remanded to the Commissioner for further proceedings.

3. HIV-infected health care professionals: testing and limitations on the right to practice

[276]. Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909 F.2d 820 (5th Cir. 1990).: FACTS: The plaintiff was a licensed practical nurse and worked for the defendant hospital. As a nurse, his job included changing patients' dressings, giving medication both orally and by injection, starting intravenous lines, performing catheterizations, and administering enemas. The hospital staff knew that the plaintiff was a homosexual and that his roommate of eight years, who had been a patient at the hospital, had recently died from an AIDS-related condition. The hospital also knew that the plaintiff was a Hepatitis B virus carrier and that he had had syphilis. Furthermore, the hospital had diagnosed the plaintiff with general lymphadenopathy, a condition indicative of a recent HIV infection.; The hospital infection control practitioner, Gustavia Growe, met with Leckelt. She requested that he have an HIV antibody test. Leckelt told her that he had already been tested and that when he picked up the results he would bring them to her.; On the day that the results were due, Leckelt informed Growe that he was not going to divulge this information to the hospital. Growe told Leckelt that he would not be allowed to return to work until he gave her the results of his test. Several weeks later, he still would not comply and Leckelt was fired.; Leckelt brought suit in federal district court under various federal and state constitutional and statutory violations of his civil rights.; ISSUES: 1. Did the defendant violate the Federal Rehabilitation Act of 1973 by discriminating against Leckelt on the basis of a perceived handicap?; 2. Was the plaintiff otherwise qualified for his job notwithstanding his perceived handicap?; 3. Did the defendant violate the Louisiana Civil Rights for Handicapped Persons Act?; 4. Did the defendant violate Leckelt's right to equal protection under the fourteenth amendment of the Constitution?; 5. Did the defendant violate Leckelt's right to privacy under the fourth and fourteenth amendments of the Constitution?; HOLDING: 1. The defendant did not discriminate against the plaintiff on the basis of a perceived handicap and therefore did not violate the Federal Rehabilitation Act of 1973.; 2. The defendant was not otherwise qualified for his job notwithstanding his perceived handicap.; 3. The defendant did not violate the Louisiana Civil Rights for Handicapped Persons Act.; 4. The defendant did not violate Leckelt's right to equal protection under the fourteenth amendment.; 5. The defendant did not violate Leckelt's right to privacy under the fourth and fourteenth amendments.; REASONING: 1. Leckelt was dismissed from his position for failure to comply with hospital policies, not because he was perceived to be HIV- positive. Although there was strong indication that Leckelt was HIV-positive and the hospital did suspect that he was HIV-positive, he was fired for not obeying hospital infection control policy by submitting to testing.; 2. By failing to report his HIV status to the hospital, Leckelt prevented the hospital from knowing whether he actually had a handicap that required reasonable accommodations. This failure to report his HIV status also prevented the hospital from taking any measures which might be necessary to protect the health of Leckelt as he worked, and that of other hospital employees and patients. Because some of Leckelt's duties included invasive procedures, and because Leckelt had failed to comply with hospital policy regarding infectious diseases, Leckelt was not otherwise qualified to perform his job of nurse.; 3. The hospital did not violate the Louisiana Civil Rights for Handicapped Persons Act because it was inapplicable to Leckelt's case. The Louisiana Act involved discrimination on the basis of an HIV test or its results whereas Leckelt was dismissed for failure to submit his test results.; 4. The hospital had a substantial interest in their infection control policies to prevent the spread of HIV and other infectious diseases and therefore had a right to ask Leckelt to submit the results of his HIV test to the hospital.; 5. Leckelt knew that the hospital infection control policies required serological testing for suspected exposures. Leckelt himself had suspected that he had been exposed to HIV and had already undergone HIV testing. The hospital's right to the results of the HIV tests is strong; the hospital can implement measures designed to protect its employees and patients from the threat of disease. Because Leckelt could have expected that the hospital would ask him for his HIV test results and because the hospital's interest in doing so is great, the hospital did not violate Leckelt's right to privacy under the fourth and fourteenth amendments.; Update since the AIDS Litigation Project I:; The district court ruled in favor of the defendant hospital on all counts. Leckelt appealed. The district court's ruling was affirmed by the appellate court.

[277]. J.H., M.D. v. Medical Center at Princeton, No. L-88-2550, Sup. Ct. N.J. Source: A.C.L.U. (Preliminary Brief, December 13, 1988).: FACTS: The plaintiff is a physician who was admitted as a patient to the hospital at which he works. He was diagnosed with AIDS, treated for pneumocystis carinii pneumonia, and released. Two weeks later he asked permission to resume performing surgery. The hospital then decided to adopt a policy requiring all health care workers with HIV, AIDS, or ARC to get specific informed consent from each patient, prior to performing invasive procedures. This was the only limitation on the workers.; ISSUES: 1. Does the hospital's policy require an illegal breach of confidentiality of HIV status?; 2. Does the policy discriminate on the basis of the handicap of AIDS?; STATUS: The plaintiff has filed a lawsuit. The court has asked each party to submit a brief outlining the medical facts about HIV, and the relevant legal issues. The trial is pending.

[278]. Kautz v. Humana Hospital-Lucerne, No. 04-86-2003, U.S. Dep't of Health & Human Servs., Office for Civil Rights, AIDS Litigation Reporter 8/25/89.: FACTS: The U.S. Department of Health and Human Services (HHS) has determined that Humana Hospital-Lucerne violated the Vocational Rehabilitation Act of 1973 by dismissing a surgical technician because he was HIV-positive.; After learning that Kautz was HIV-positive, the hospital informed him that he would no longer be allowed to participate in invasive surgical procedures. As a surgical technician, Kautz assisted surgeons in holding open chest cavities, holding organs, and providing surgeons with medical instruments. The hospital placed Kautz on suspension and would not allow him to return to work there.; The Office for Civil Rights (OCR) determined that the hospital, by terminating Kautz without offering him another position or providing him with the usual internal review procedures, had violated the Vocational Rehabilitation Act of 1973.

[279]. Doe v. Westchester Cty. Medical Ctr., AIDS Policy and Law 4/4/90.: FACTS: Doe applied for and was offered a job as a pharmacist with the Westchester County Medical Center. His medical records at the hospital indicated that he had previously tested positive for HIV. When this was discovered his job offer was withdrawn.; Doe filed suit with the New York State Division on Human Rights under the state human rights act. He also filed with the Office for Civil Rights of the Federal Department of Health & Human Services (OCR) for violating the 1973 Vocational Rehabilitation Act (Act).; An administrative law judge of the New York State Division on Human Rights found that the hospital had violated state law in denying the pharmacist employment. The hospital was ordered to hire him. However, the administrative law judge said that the hospital must also comply with state rules that limit the employment of pharmacists with infectious diseases. This ruling is being appealed to the State Commissioner for Human Rights, on the basis that there should be no restrictions on Doe's job duties.; The OCR later ruled that the hospital had violated the Act by denying Doe the job as pharmacist based on the fact that he was HIV-positive. The OCR ordered the hospital to hire Doe with backpay, transfer & seniority rights, and without restrictions on his job duties, contrary to the state administrative decision.

[280]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business Development.: FACTS: Complainant alleged that upon admittance to Respondent's emergency room he informed Respondent that he was a homosexual and that based on that information alone, Respondent assumed that he was HIV-positive. Therefore, while he was under Respondent's care he alleged he: 1) was subjected to an HIV test without his consent; 2) was denied access to the services and accommodations of Respondent's psychiatric facilities; 3) was arbitrarily placed on blood and body fluid precautions. Moreover, he alleged Respondent released confidential information to Complainant's employer without his consent.; Respondent admits that Complainant was placed on blood and body fluid precautions and denied access to the psychiatric facilities. The Respondent states that it made these decisions based on the fact that the Complainant is a homosexual and he was perceived by Respondent as being at high risk for testing HIV- positive. The Respondent denies that the HIV test was given without Complainant's knowledge. Respondent further denies that it released confidential information to Complainant's employer.; ISSUE: Was Complainant subject to disparate treatment in the terms and conditions of the services he was provided while in Respondent's care based on his sexual orientation (homosexual) and perceived physical handicap (HIV positive)?; STATUS: Undecided --hearing before the D.C. Commission on Human Rights scheduled.

[281]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business.: FACTS: Complainant was accepted into a hospital drug program. Complainant was issued a room and completed all the initial screening and processing. During the final phase of the processing Complainant was asked by a nurse if he had AIDS. Complainant told the nurse that he was HIV positive. Complainant was told to go back to his room. Shortly after he returned to his room a male staff member entered and told him that he was expelled from the program and had to leave the hospital.; ISSUE: Was Complainant subjected to disparate treatment in the terms and conditions of the services he received from Respondent's place of public accommodations based on his physical handicap (HIV positive)?; STATUS: Administrative Closure--dismissed for lack of jurisdiction because the complaint was filed after statute of limitation tolled.

[282]. Dawson v. Medical College of Va., Civil Action No. l89-492- R, U.S.D.C. E.D., a., at Richmond. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va..: FACTS: Medical College of Virginia (MCV) refused to provide surgery to an HIV-positive patient who had sought treatment for an arm condition unrelated to HIV. Plaintiff brought an action under the Rehabilitation Act and for medical malpractice. Defendant MCV asserted a claim of sovereign immunity to the Rehabilitation Act, which was rejected by the judge.; STATUS: Settled.

[283]. Holt v. Ellenbogen, Chancery No. 89-848, Arlington Cir. Ct., filed October, 1989. SOURCE: Kenneth Labowitz, Esq.,Alexandria, Va..: FACTS: A dentist refused to treat a patient when the patient revealed he was HIV-positive. Jurisdiction was alleged under Virginia Rights of Persons with Disabilities Act because the dentist's office is place of "public accommodation".; STATUS: Settled.

[284]. Parks v. Virginia Dep't of Rehab. Servs., SOURCE: Kenneth Labowitz, Esq., Alexandria, Va..: FACTS: An AIDS afflicted man, disabled from AIDS-related stroke, sought vocational rehabilitative services to retrain to return to employment. The Virginia Department of Rehabilitative Services has an explicit policy refusing to provide rehabilitative services to those with AIDS. Applicant claimed that the policy discriminates against those with AIDS in violation of the Rehabilitation Act.; STATUS: Administrative review by Commissioner pending.

[285]. Doe v. Primary Care Corporation, Civil Action No. 86-377-A, U.S.D.C. E.D. Va. at Alexandria, filed April, 1986. SOURCE: Kenneth Labowitz, Esq., Alexandria, Va..: FACTS: A breach of contract action, brought by a physician against the clinic proprietor alleged that the physician's AIDS diagnosis was revealed to his employer by the treating physician, and the employer refused to let physician return to his duties.; STATUS: Settled.

F. Insurance

[286]. William Penn Life Ins. v. Sands, 912 F.2d 1359 (11th Cir. 1990).: FACTS: After one insured by the plaintiff died and the beneficiary tested positive for HIV and was diagnosed as having AIDS, the insurer refused to pay death benefits and initiated action to rescind both life insurance policies. The surviving insured counterclaimed, seeking payment of death benefits and declaration of continued validity of his own policy. Neither applicant knew of his disease at the time he completed his application.; ISSUE: Can a truthful response to a question based an applicant's "knowledge and belief" be considered a misstatement or misrepresentation in an insurance policy rescission action?; HOLDING: A truthful response cannot be a misstatement.; REASONING: Under Florida law, a material misstatement in an insurance policy application would provide a basis for rescinding the policy even if the applicant could not have known that his statements were incorrect or inaccurate. A truthful response to a question based on applicant's "knowledge and belief", however, cannot be considered a misstatement or misrepresentation in an insurance policy rescission action. In the instant case, the life policy applicants' negative responses to a question regarding prior specified medical conditions did not entitle the insurer to rescission of the policies. Application inquiries are to be answered to the best of the applicant's knowledge and belief and were allegedly so answered.

[287]. Fernandez v. Bankers Nat'l Life, No. 89-5485, 11th Cir. U.S. Ct. of App., AIDS Litigation Reporter 8/10/90.: FACTS: The plaintiff-beneficiary brought an insurance fraud suit when Bankers National Life failed to make payments after her brother died from AIDS-related causes. The defendant contended that it denied payment because Daniel Fernandez had failed to disclose treatment for a herpes infection.; The district court had awarded summary judgment to the defendants before ruling on the plaintiff's motion to compel discovery of important documents. The plaintiff appealed to the 11th Circuit U.S. Court of Appeals.; ISSUE: Should the trial judge have awarded summary judgment to the defendant before ruling on the plaintiff's motion to compel discovery of documents?; HOLDING: The trial judge should not have awarded summary judgment to the defendant before ruling on the plaintiff's motion to compel discovery of documents. Reasoning:; The appellate court has remanded the case so that the district court can rule on the plaintiff's motion. The appellate court said that production of these documents might show that the defendant had issued policies and honored claims in situations similar to the Fernandez's.; Additionally, the appellate court found that the facts of this case are in dispute and that the insurance applications that the plaintiff requested are relevant and necessary to provide a clearer record in this case. Also, failure to rule on the plaintiff's motion denied her the right to use the discovery process in order to obtain information that she could use to oppose the defendant's motion for summary judgment. Therefore, the district court erred and the appellate court remands the case.

[288]. Mele v. First Colony Life Ins., No. 88-3297, U.S. Dist. Ct., Dist. Columbia, 1990 U.S. Dist. LEXIS 3726, April 2, 1990, Decided; As Amended April 17, 1990.: FACTS: The plaintiff's employer procured life insurance policies from the defendants to insure the plaintiff's life. As part of the physical examination required, the plaintiff underwent a series of blood tests. His blood was tested for HIV and the test was positive. Consequently, he was denied life insurance coverage.; Plaintiff alleges that the defendants tested his blood for HIV in violation of the Prohibition of Discrimination in the Provision of Insurance Act of 1986 (the Act). The Act prohibits denial of insurance coverage because an individual tests positive on an AIDS related test or because an individual declines to take such a test. After the plaintiff filed suit, this provision of the Act was repealed.; ISSUES: 1. Did the repealing of the statute extinguish the plaintiff's cause of action under the Act though the claim was filed but not decided before the provision was repealed?; 2. Are the defendants entitled to entries of summary judgment?; HOLDING: 1. The plaintiff's claim under the Act survives the repealed statute.; 2. The defendants' motions for summary judgment are denied except as to the issue of civil penalties.; REASONING: 1. The Savings Clause provides that causes of action filed but not determined at the time of a repeal would survive the repeal. Because there is no provision within the Act itself that conflicts with the Savings Clause, the plaintiff's claim survives the amendments of the Act because it was filed before the Act was changed.; 2. Because there is a genuine dispute regarding alleged violations of the Act, the defendants are not entitled to summary judgment as a matter of law. However, whether civil penalties may be claimed by the plaintiff is a matter of law for the court to decide.

[289]. Murphy v. State Farm Ins., No. C88-4940 SC, U.S. Dist. Ct., N. Dist. Fla., AIDS Litigation Reporter 5/25/89.: FACTS: The widow of a man who died from AIDS applied for insurance coverage for herself and her two children with the defendant State Farm. They were denied coverage because they had lived with someone who had a communicable disease. The widow filed suit in a California court. The case was removed to federal district court.; ISSUES: 1. Was State Farm negligent in denying the plaintiff and her sons insurance coverage based on medically incorrect underwriting standards?; 2. Did State Farm violate the California Insurance Code and the Unruh Civil Rights Act?; 3. Did State Farm negligently inflict emotional distress? 4. Did State Farm defame the plaintiff by implying that she and her sons had AIDS?; HOLDING: 1. State Farm was not negligent in denying the plaintiff and her sons insurance coverage based on medically incorrect underwriting standards.; 2. State Farm did not violate the California Insurance Code or the Unruh Act.; 3. State Farm did not negligently inflict emotional distress.; 4. State Farm did not defame the plaintiff by implying that she and her sons had AIDS. Reasoning:; 1. The defendant was not negligent for denying the plaintiff insurance coverage because it had no duty to contract or to make contract decisions accepting the plaintiff's application.; 2. Neither the California Insurance Code nor the Unruh Act applied to underwriting decisions made by insurance companies. Therefore, State Farm did not violate these acts.; 3. The court did not award judgment to the plaintiff for the claim of negligent infliction of emotional distress because that claim requires a showing of a duty of care owed by the defendant and a breach of that duty. Such a duty of care was not shown to be present.; 4. The judge's reasoning for holding that the defendant did not defame the plaintiff was not given.; Update since the AIDS Litigation Project I:; The complaint as filed in the California court was reported in the AIDS Litigation Project I. Since that time, the case has been removed to federal court and the judge has awarded summary judgment to the defendant on all counts.

[290]. Elder v. SMA Life Assurance Co., Civ. No. 88-1261-FR, U.S. Dist. Ct., Dist. Or., 1990 U.S. Dist. LEXIS 4030, April 2, 1990.: FACTS: The plaintiff applied for, and was given, a disability income insurance policy from the defendant. Subsequently, the plaintiff tested positive for HIV. Four months after the plaintiff learned that he had tested positive for HIV, the plaintiff applied for a second disability insurance policy with the defendant. The plaintiff did not tell the insurance agent that he had tested positive for HIV. The plaintiff later filed claims under both insurance policies.; The defendant offered to terminate the two policies and refund the premiums that the plaintiff had paid. The plaintiff accepted the cancellation of the second policy but refused to accept the cancellation of the first on the grounds that he had no knowledge as to his contraction of HIV when he applied for the first policy. The defendant responded to this by claiming that the offer to terminate the policies was based on plaintiff's failure to provide medical information regarding a back condition as well as the plaintiff's concealment that he had AIDS.; The plaintiff brought suit, claiming that he was entitled to both insurance policies. The defendant counterclaimed to rescind the policies based on the plaintiff's misrepresentations.; ISSUES: 1. Should the defendant's motion for partial summary judgment as to its claim for rescission of the second insurance policy be granted?; 2. Is the defendant bound by its agents' statements to the plaintiff regarding what information must be included in the application for disability insurance?; 3. Do the plaintiff's intentions regarding the plaintiff's misrepresentations make any difference in the defendant's counter-claim?; 4. Should the defendant be allowed to use the plaintiff's misrepresentations made after the policies were issued to support the defendant's counter-claim?; HOLDING: 1. The defendant's motion for summary judgment was granted as to the rescission of the second insurance policy.; 2. The plaintiff is not entitled to rely upon the agent's answers when the agent was not provided with all material information from the plaintiff.; 3. The plaintiff's intentions regarding the plaintiff's misrepresentations are not required to preclude the plaintiff from recovering.; 4. The evidence of misrepresentations that the plaintiff made after the policies were issued is admissible as proof of "absence of mistake or accident."; REASONING: 1. The plaintiff has admitted that he did not provide complete medical information when he applied for the second insurance policy. Because there is no genuine issue of material fact as to defendant's right to rescind, partial summary judgment is granted to the defendant and the second policy is rescinded.; 2. The rule that binds insurance companies to their statements regarding what information must be included is not applicable when the insured withholds material information.; 3. The plaintiff's misrepresentations must be either fraudulent or material to preclude the plaintiff from recovering. There is no requirement that plaintiff's misrepresentations be intentional. Thus, the plaintiff's claim that his misrepresentations were unintentional makes no difference to the defendant's counter-claim.; 4. Under the Federal Rules of Evidence, evidence of "other acts" as circumstantial evidence of motive, opportunity, intent, preparation, etc. is admissible. Evidence of the plaintiff's omissions in his application for the second policy is clear, convincing, and relevant in character. Thus, it is admissible as proof of absence of mistake or accident in the plaintiff's actions in support of the defendant's counter-claim.

[291]. Gardner v. Rainbow Lodge, No. H-88-1705, U.S. Dist. Ct., S. Dist. Tex., AIDS Litigation Reporter 6/8/90.: FACTS: Gardner, who is HIV positive, was employed by the defendant Rainbow Lodge. The plaintiff was fired from this job, allegedly because of his medical condition. The defendant claimed he was fired because of poor job performance.; Gardner argued that his rights to insurance coverage had been denied him because he was handicapped, in violation of the Federal Consolidated Omnibus Budget Reconsideration Act (COBRA), and that Rainbow Lodge had also violated provisions of the Texas Commission on Human Rights Act. A U.S. District Court jury held that the defendant had wrongfully terminated Gardner and awarded him $60,000 for back wages.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I when the complaint was filed. Since that time, the jury has awarded judgment to the plaintiff.

[292]. McGann v. H & H Music Co., No. H-89-1995, U.S. Dist. Ct., S. Dist. Tex., AIDS Litigation Reporter 8/10/90.: FACTS: The plaintiff claimed that his employer had discriminated against him because he was HIV-positive. He alleges the employer switched his insurance coverage to a self-insurance plan that reduced the cap on AIDS-related benefits from $1 million to $5,000. McGann claimed that his employers changed his plan in response to his claim for benefits, in violation of the Federal Employee Retirement Income Security Act (ERISA).; ISSUE: Did the employer discriminate against McGann in violation of ERISA?; HOLDING: The employer did not discriminate against McGann in violation of ERISA.; REASONING: Revisions in the employer-company's AIDS insurance coverage were done to preserve the insurance plan after it had suffered serious losses from other AIDS claims. The court held that the defendant had a right to change the plan and that McGann did not have a right to health benefits whose terms never change. Furthermore, the court found that the defendant had complied with ERISA by supplying employees with written notices of the revisions in their insurance plan.; STATUS: The plaintiff has filed a notice of appeal with the 5th Circuit U.S. Court of Appeals.

[293]. Cheney v. Bell Nat'l Life, 556 A.2d 1135 (Md. 1989): FACTS: The plaintiff's husband was insured by the defendant against accidental death. The policy was subject to an exception such that accidental death which resulted from a disease or treatment for a disease was not covered. The insured died of pneumonia, which was a direct consequence of his having contracted HIV from blood products used to treat his hemophilia. The parties agree that the death was accidental, but the defendant contends that the exception prevents payment to the beneficiary (the plaintiff) because the accident was a result of the treatment of the disease of hemophilia.; ISSUES: 1. Where one contracts HIV from blood products used to treat hemophilia, when did the accidental injury occur?; 2. Is congenital hemophilia a "disease" within the meaning of the insurance policy?; HOLDING: 1. The accidental injury occurs when HIV-contaminated blood products are injected into the body.; 2. Hemophilia is a "disease" within the meaning of the insurance policy.; REASONING: 1. The plaintiff contends that the accident which eventually led to her husband's death occurred when the blood was drawn from an HIV- positive donor. "Creative as the argument may be, it is not persuasive." In fact, the accident occurred when the contaminated blood product was injected into the insured. Thus, the accident occurred in the course of treatment of hemophilia. The first part of the exception to the insurance policy is satisfied.; 2. Unlike many jurisdictions, Maryland does not construe insurance policies against the insurer, rather they are treated as ordinary contracts. The word "disease" must therefore be given its usual meaning. Within the scientific community, there is disagreement whether hemophilia is a disease, condition or disorder; however, case precedent and dictionaries indicate that hemophilia should be considered a disease. Thus, the accidental injection of HIV- infected blood products occurred in the treatment of a disease. The exception to the insurance policy is satisfied, and no payment is due to the beneficiary.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I. At that time, the Maryland Court of Special Appeals had decided that the injection of infected blood products was not an "accident" and therefore was not covered by the policy. Here, the Maryland Supreme Court found that it was an accident, but reached the same result through the exception clause.

[294]. Health Ins. Assoc. of America v. Corcoran, 154 A.D.2d 61, 551 N.Y.S.2d 615 (1990).: FACTS: The New York State Superintendent of Insurance has passed a regulation which bans mandatory HIV testing and the use of known HIV status for use in determining an applicant's insurability. The regulation applies only to individual and small group health insurance. The Superintendent based his decision in part on the opinion of the Commissioner of Health that such use of HIV status would be harmful to the public health.; Several insurance companies and trade associations have challenged the regulation. They believe that HIV-related information is a lawful and essential element in determining one's insurance and actuarial status.; ISSUE: Is the regulation banning the use of HIV-related information invalid because the Superintendent of Insurance exceeded his authority in promulgating it?; HOLDING: The Superintendent of Insurance exceeded his authority in promulgating the regulation banning the use of HIV-related information; therefore, it is invalid.; REASONING: The Superintendent of Insurance has broad authority to regulate underwriting policies. However, his decisions must have a basis in the Insurance Law, which bestows his power, and must not be capricious or arbitrary. The Insurance Law gives insurance companies great freedom to choose which risks they will insure against and to use many methods to discover the information that they require.; The use of HIV information is a reasonable and valid method to determine the risk of exorbitant future costs. It is in the best interest of the policy holders and the public to avoid a "formidable financial threat of disastrous proportions." The use of testing to obtain this valuable HIV information is also reasonable and justified. The ELISA antibody test and the Western blot test are accurate and reliable.; The problem of possible discrimination against the class of insureds who test HIV-positive is not within the Superintendent's authority to resolve. All regulations which prohibit an otherwise valid underwriting practice, for the purpose of reducing discrimination, are passed by the state legislature. The Superintendent may not "make illegal that which is permitted by law."; Although the Insurance Law does authorize the elimination of underwriting practices which are contrary to the public health, this does not give the Superintendent and the Commissioner of Health "carte blanche to drastically disturb long-standing principles." In this instance, the Superintendent has exceeded his authority, and the regulation is invalid.; Update since the AIDS Litigation Project I:; This case was reported in the AIDS Litigation Project I. The New York Superior Court held, as this court did, that the Superintendent exceeded his authority.

[295]. Bradley v. Empire Blue Cross, Sup. Ct. N.Y. Sources: A.C.L.U., LAMBDA Press Release, The New York Times, July 31, 1990.: FACTS: The plaintiff is in an advanced stage of AIDS. He has an identical twin who is willing to serve as a donor for a bone marrow transplant. The plaintiff's physician estimates a 90% chance of improvement and survival with the transplant, which would reconstitute his immune system. The plaintiff's insurance company, however, refuses to pay for the transplant. Empire Blue Cross considers it to be an investigational procedure, although the FDA and Medicaid approve of and fund the transplant for their insureds.; ISSUE: Should the court require the insurance company to pay for a bone marrow transplant for a person in an advanced stage of AIDS?; HOLDING: The court ordered a temporary injunction, requiring the insurance company to pay for this particular transplant.; STATUS: It was ordered that the plaintiff have his transplant immediately. This decision did not necessarily require the insurance company to pay for future transplants for other insured persons. However, the plaintiff has subsequently developed an eye infection, preventing him from undergoing the transplant surgery. The plaintiff is not expected to recuperate to the point where the marrow transplant surgery could take place. His life expectancy is only a few months.

[296]. Doe v. Cooper Investment, No. 89-B-597, U.S. Dist. Ct., Dist. Colo., May 5, 1989, AIDS Litigation Reporter 5/26/89.: FACTS: The plaintiff was fired after he informed his employer that he had AIDS. The plaintiff alleges that the employer fired him to avoid the additional costs which would result from the plaintiff's use of the health plan, and out of a general fear of AIDS. The plaintiff was told that he had to pay the costs of his health insurance premium if he wished to retain its coverage after he was terminated from his job. Later, his policy was canceled altogether.; The plaintiff claimed that the defendant violated the Employment Retirement Income Security Act of 1974 (ERISA). He asked for wages, health insurance, retirement benefits, and reinstatement to his former position. The judge issued a temporary restraining order directing the defendant to provide the plaintiff with health insurance.; An out of court settlement was reached between the two parties that provided the plaintiff with $50,000 and $25,000 in additional medical insurance coverage.

[297]. National Gay Rights Advocates v. Great Republic Ins., No. 857323, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 5/25/90.: FACTS: The parties in this suit have reached a private settlement after a four-year legal battle. The insurance company is to pay $5000 to the plaintiff David Hurlbert, and $10,000 to the National Gay Rights Advocates and $70,000 to the Employment Law Center for legal costs.; Hurlbert had refused to complete an insurance application addendum that had been designed to screen out persons who were HIV- positive. Hurlbert brought suit, alleging that Great Republic had violated California's anti-discriminatory Unruh Civil Rights Act.; Great Republic has agreed not to discriminate against applicants on the basis of sexual orientation. It will also give all those applicants who may have been denied coverage because of the discriminatory addendum another chance to apply for insurance. Great Republic admitted that its practices were an attempt to avoid accepting persons with AIDS.; Update since the AIDS Litigation Project I:; The complaint was reported in the AIDS Litigation Project I. Since that time the parties have settled.

[298]. Lewis v. Physician's Health Plan Inc., CA No. 89-0530-A, U.S. Dist. Ct., E. Dist. Va., April 17, 1989, AIDS Policy and Law 4/19/89.: FACTS: The plaintiff is a person with AIDS who is suing his former employer for failing to continue his group health insurance policy as required by the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA). When the plaintiff's former employing company was sold to another company, the plaintiff was fired from his job. He was told his group coverage would be discontinued but that the plaintiff could acquire individual conversion coverage. Individual coverage is not as extensive as the group coverage. It does not cover the cost of prescription drugs, $2,000 to $3,000 per month.; The defendant argues that it does not have to provide COBRA coverage to Lewis because of the change in ownership.; STATUS: This case is awaiting trial.

[299]. Rosco v. Great Republic Ins., No. 919372, Cal. Super. Ct., San Francisco Cty.;

[300]. White v. Great Republic Ins., No. 919933, Cal. Super. Ct., San Francisco Cty., AIDS Litigation Reporter 7/13/90.: FACTS: Great Republic announced that it would be canceling some group health insurance policies that cover about 14,000 Californians. This announcement came within days of the settlement of Nat'l Gay Rights Advocates v. Great Republic Ins., in which a man had claimed that he had been discriminated against for insurance because he fell into a group high at risk for AIDS.; Rosco, who has been diagnosed with AIDS, claims that Great Republic's cancellation of his group insurance policy is a breach of contract, a breach of covenant of good faith and fair dealing, and a breach of fiduciary duty.; White, who was diagnosed with cancer, was offered conversion of her policy to a plan providing substantially fewer benefits. She makes similar charges against Great Republic, and also charges the defendant with fraud, conspiracy, negligence, and negligent and intentional infliction of emotional distress.

[301]. National Gay Rights Advocates v. Commercial Sales and Serv. Trust, Cal. Dep't of Ins., AIDS Policy and Law 8/9/89.: FACTS: Complaints have been filed against two California insurance companies charging that both sell policies that discriminate against people with AIDS. Commercial Sales and Service Trust limits lifetime benefits for treatment for AIDS to $10,000, compared to $1 million for the treatment of other life-threatening illnesses. The other company, Self-Created Insurance Services of Anaheim Hills, offers discounts for the purchase of prescription drugs, but until recently has denied all coverage for AIDS-related drugs.

[302]. Guardian Life Ins. Co. of America v. Smyth, Nos. 07899/87 & 07900/87, Sup. Ct. N.Y. Source: LAMBDA.: FACTS: The plaintiff, an insurance company, issued a life, health and disability policy to the defendant. A year later, the plaintiff learned that the defendant had been diagnosed with AIDS. The plaintiff alleges that the defendant materially misrepresented his medical history on the application for insurance, and now seeks to rescind the contract. The plaintiff alleges that the defendant failed to disclose six major illnesses, including Syphilis and Hepatitis, which would have had a bearing on its decision to issue a policy. In preparation for that trial, the plaintiff wishes to compel the defendant to divulge his sexual practices and partners.; ISSUE: Should the court compel the defendant to answer questions regarding his sexual practices and partners?; HOLDING: The court will not compel the defendant to answer questions regarding his sexual practices and partners.; REASONING: The court found the information about sexual practices and partners irrelevant to the sole issue of whether the defendant misrepresented his medical history. The right to privacy protects the defendant from having to divulge this information.; STATUS: This case will continue, to determine whether the insurance company may rescind its contract with the defendant.

[303]. Complainant v. Respondent, District of Columbia, Department of Human Rights and Minority Business.: FACTS: Complainant subscribed to a dental group insurance plan. Complainant visited the clinic for a dental examination and informed the dentist that he was HIV-positive. The dentist then refused to assist Complainant and told him that no other dentist in the clinic would assist him. Complainant contacted his group health plan and was informed there were no dentists within the group plan that would perform dental work on HIV-positive persons. Complainant was further informed he would have to have the dental work performed by a dentist outside the plan at his own expense and then be reimbursed by the health plan once the work was completed.; ISSUE: Was Complainant subjected to disparate treatment in the services and accommodations he received from his group health plan based on his physical handicap (HIV positive)?; STATUS: Predetermination settlement.

[304]. Insured v. Maccabees Life Ins., Civil action No. 89-562-A, U.S.D.C. E. D. Va., at Alexandria, Va., tried October 23, 1989. SOURCE: Kenneth Labowitz, Alexandria, Va..: FACTS: Action to enforce disability insurance policy after disability sought for AIDS. Defense based upon fact that Plaintiff was diagnosed in October, but continued to work until two year incontestability period ran in December. Defense attempted to show Plaintiff contrived to work two more months to reach incontestability cutoff. Defense also sued Plaintiff's physician for negligence in reporting medical history at onset of policy.; HOLDING: Jury verdict in favor of Plaintiff, presently on appeal.

XII. FEAR OF EXPOSURE

[305]. Burk v. Sage Products, 747 F. Supp. 285 (E.D. Pa. 1990).: FACTS: A paramedic, stuck by a needle protruding from a disposed container of used medical syringes, filed a products liability action against the container manufacturer. He claimed emotional distress due to his fear of contracting AIDS.; ISSUE: Absent proof that the plaintiff is in fact exposed, can he recover for his fear of contracting AIDS in a products liability action?; HOLDING: One cannot recover for emotional distress absent proof of injury.; REASONING: The paramedic had to show exposure to HIV in order to recover. Under Pennsylvania products liability law, a person cannot recover for fear of contracting disease if it has become substantially likely he will not develop the illness alleged to have been caused by the defective product.

[306]. Ross v. Department of Motor Vehicles, 219 Cal. App. 3d 389, 268 Cal. Rptr. 102 (1990).: FACTS: Ross was arrested on suspicion of driving under the influence of alcohol. In California, Ross had to choose between either taking a breath, blood, or urine test for the presence of alcohol, or losing his driver's license for a specified period. Ross chose the blood test, believing it to be the most accurate. When the technician arrived to draw the blood, he looked tired and disheveled. Ross asked the technician for identification. The arresting officer deemed this request as a refusal to submit to the test, and arranged for the Department of Motor Vehicles to suspend Ross' license.; ISSUE: Did Ross' request to see the technician's identification constitute a refusal to submit to a blood test for the presence of alcohol?; HOLDING: The request to see the technician's identification did not constitute a refusal to submit to the test for the presence of alcohol.; REASONING: It is true that the consent to a test for the presence of alcohol may not be conditional. A conditional consent would force the arresting officer to make an evaluation on a case by case basis. However, the request for identification of one acting in an official capacity is reasonable. When that official is going to "intrude into the body with a needle, it is not only reasonable, but prudent" to require identification. Ross had an honest concern, "[i]n the wake of the public's legitimate anxiety over the transmission of the AIDS virus intravenously." Therefore, when an arrestee requests assurance of the technician's identity, it must be provided.

[307]. Palmetto Gen. Hosp. v. Green, 559 So.2d 1175 (Fla. 1990).: FACTS: The plaintiff, Green, was bitten by a snake, taken to the hospital and treated in the emergency room. Green later sued the hospital and doctors for medical malpractice, alleging that they waited too long to treat him and otherwise handled his treatment negligently. The case was heard by a jury. During the trial, Green's lawyer asked a medical expert witness whether blood had been routinely screened for HIV at the time that Green received a transfusion. There had been no claim that Green had contracted HIV and no evidence of any kind relating to HIV or AIDS.; ISSUE: Was the question in front of the jury pertaining to AIDS so prejudicial and inflammatory that the motion for mistrial should be granted?; HOLDING: The question pertaining to AIDS was so prejudicial and inflammatory that the motion for mistrial must be granted.; REASONING: This case originally had no AIDS-related issues. Green's lawyer asked the medical expert about HIV screening of blood only to suggest to the jurors that there may have been some risk to Green of HIV exposure, in the hope that the jurors' fears and sympathies would be aroused.; "Given the general climate of AIDS hysteria, there is no doubt...that the question itself indelibly infected the proceedings" because the question was "so inflammatory and so prejudicial." The mistrial was granted and the malpractice case will be retried without mention of AIDS.

[308]. People v. Meeboer, 449 N.W.2d 124 (Mich. App. 1989).: FACTS: The defendant was convicted of first degree criminal sexual conduct for the sexual abuse of a six-year-old girl. Statements made by the girl to her examining physician identified the defendant as the offender.; ISSUE: Are statements made by a patient to her examining physician admissible as an exception to the exclusion of hearsay evidence?; HOLDING: Statements made by a patient, even as to the identity of the offender, are admissible as an exception to the exclusion of hearsay evidence.; REASONING: The identity of the offender was medically necessary information to determine the likelihood of the spread of venereal disease or AIDS. The court stated, "with the rapid spread of AIDS, the perpetrator of every rape needs to be identified and evaluated as part of the victim's care and treatment.

[309]. Hare v. State, N.Y. Ct..Cls, AIDS Policy and Law, 4/19/89.: FACTS: The plaintiff is a health care worker at a hospital in which a prisoner was being held following a suicide attempt. At the hospital, the prisoner stole a fork from another patient and stabbed himself with it. The plaintiff responded to the guard's request for help. While the plaintiff and the guard sought to restrain the prisoner, the prisoner bit the plaintiff on the arm. Later, a nurse suggested that the plaintiff disinfect the wound because the prisoner was rumored to have AIDS. The plaintiff became concerned after this incident and went to a doctor. The plaintiff was tested three times for HIV and all tests have been negative.; The plaintiff sued the State of New York for negligently failing to guard, restrain, and control the prisoner. As a result, the plaintiff has suffered pain, anguish, distress, and "AIDS- phobia".; ISSUES: Should the plaintiff recover damages for anguish, distress, and AIDS-phobia?; HOLDING: The plaintiff should not recover damages for anguish, distress, and AIDS-phobia.; REASONING: To recover damages for anguish, distress, and AIDS-phobia, negligence must be shown to be the "proximate cause" of these injuries. But the plaintiff's psychological injuries are only a consequence of the defendant's negligence. The evidence does not show any actual risk of contracting AIDS. The prisoner was only rumored to have AIDS and the plaintiff has repeatedly tested negative for HIV, which should have negated the plaintiff's fears.; STATUS: The plaintiff's claims based on anguish, distress, and AIDS- phobia were dismissed. The plaintiff was then awarded $35,000 for his other claimed injuries.

[310]. New York v. N.Y.C. Transit Auth., No. 41627/90, N.Y. Sup. Ct., N.Y. Cty., AIDS Litigation Reporter 4/27/90.: FACTS: The New York State Attorney General has filed suit against the New York City Transit Authority (NYCTA) asking the NYCTA to institute an education and training program for its employees who come into contact with waste that is potentially HIV-infected.; The Attorney General's office argues that the NYCTA janitors who clean the stations come into daily contact with used syringes, blood, human waste, and used tampons and condoms. These workers are not given protective clothing or special containers in which to put this potentially HIV-infected waste.; The two parties settled the suit privately. The Attorney General has agreed to drop the suit and NYCTA will provide its workers with proper training and equipment to deal with potentially HIV-infected waste.

[311]. Elliott v. Dugger, 542 So.2d 392 (Fla. App. 1st Dist. 1989).: FACTS: Elliott worked at the Reception and Medical Center, a prison hospital. Elliott alleges that two inmates removed HIV-infected blood from the lab and secretly poured it into Elliott's coffee, which Elliott then drank.; STATUS: This case was appealed on a procedural point, and sent to trial for determination of both the procedural issue and the underlying cause of action for injury sustained by ingestion of HIV.

XIII. SPECIAL POPULATIONS: PRISONS

A. State's Duty to Protect Guards and Inmates

1. Testing, Screening and Segregation

[312]. Walker v. Summer, 917 F.2d 382 (9th Cir. 1990).: FACTS: A former Nevada State Prison inmate brought an action alleging that his fourth, eighth and fourteenth amendment rights were violated when prison guards forced him to submit to a blood test by threatening to shoot him with "taser" (shock) guns. The prison officials contended that the blood tests were administered to determine if any prisoners were HIV carriers and that the plaintiff was so notified. The plaintiff asserted that he had received no notice, that the blood samples were collected to train medical personnel in the administering of tests for HIV, and, as each inmate was screened for HIV upon entering the prison, that the prison officials knew that no prisoners had AIDS at the time the disputed samples were taken.; ISSUE: Are general protestations of concern for the welfare of state citizens and the prison community sufficient to render involuntary search and seizure of blood specimens from prison inmates constitutionally reasonable?; HOLDING: General concern is not sufficient.; REASONING: Prison officials must show that the blood sampling was "reasonably related to legitimate penological interests" and provide evidence that the interest proffered is why the regulation was adopted or enforced. Prisoners, despite their conviction and confinement, do not forfeit all constitutional rights. Nevertheless, their constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve correctional goals and maintain institutional security. However, there must be a valid, rational connection between the prison regulation impinging on an inmate's constitutional rights and the legitimate government interests put forward to justify it.

[313]. Harris v. Thigpen, 727 F. Supp. 1564 (M.D. Ala. 1990).: FACTS: The plaintiffs are prisoners in the Alabama prison system. They challenge the constitutionality of a state law which requires that all incoming and outgoing prisoners have their blood tested for HIV. The plaintiffs also challenge the constitutionality of some of the practices of the Alabama Department of Corrections (ADC), such as segregating the HIV-positive inmates, denying those inmates access to educational and vocational programs, denying them adequate medical care, and denying them adequate psychological care.; ISSUES: 1. Does the ADC's involuntary blood testing program constitute an unlawful search and seizure in violation of the fourth amendment?; 2. Does the ADC's involuntary blood testing program violate the plaintiffs' right under the fourteenth amendment not to have personal matters collected and disclosed?; 3. Does public disclosure of the HIV-positive inmates through automatic segregation constitute cruel and unusual punishment in violation of the eighth amendment?; 4. Does the automatic segregation of HIV-positive inmates without a hearing deny procedural due process in violation of the fourteenth amendment?; 5. Does the denial of HIV positive inmates access to various prison programs deny these inmates equal protection of the law in violation of the fourteenth amendment?; 6. Do the intervening defendant-prisoners have a right to have seropositive inmates mandatorily tested and segregated from the general prison population?; 7. Does the failure to provide adequate medical and mental health care constitute cruel and unusual punishment in violation of the eighth amendment?; 8. Does the denial of meaningful access to legal information deny the HIV-positive prisoners the right of access to the courts in violation of the first and fourteenth amendments?; 9. Does the ADC's treatment of the HIV positive inmates violate the Rehabilitation Act of 1973?; HOLDING: 1. The ADC's involuntary blood testing program does not constitute an unlawful search and seizure in violation of the fourth amendment.; 2. The ADC's involuntary blood testing program does not violate the prisoners' right to privacy.; 3. Automatic segregation of HIV-positive inmates does not constitute cruel and unusual punishment under the eighth amendment.; 4. Automatic segregation of HIV-positive inmates does not violate procedural due process under the fourteenth amendment.; 5. The denial of access of HIV-positive inmates to various prison programs does not violate the inmates' right to equal protection of the law under the fourteenth amendment.; 6. The submission of the intervening defendants to avoid contact with HIV-positive inmates could be considered as violative of the defendants' constitutional rights.; 7. The current medical care of the plaintiffs is reasonable and therefore does not constitute cruel and unusual punishment.; 8. There is not sufficient evidence to determine whether constitutionally adequate assistance to legal information is provided to the prisoners.; 9. The ADC did not violate the Rehabilitation Act.; REASONING: 1. Inmates enjoy only limited fourth amendment protection from searches and seizures, and the government need only show reasonableness to validate the search of a prisoner. A blood testing requirement is reasonable. The prison needs to know if any of its prisoners carry a deadly disease, so that steps can be taken to protect guards and other prisoners from exposure, as well as to provide the necessary medical care for those who test positive. The court also considered the Federal Rules of Civil Procedure, authorizing blood tests for trial, and the Supreme Court decision of Camden & Suburban Ry Co. v. Stetson, which held that a state has authority to order an examination such as blood testing. Therefore, blood testing is not an unlawful search and seizure under the fourth amendment.; 2. These plaintiffs claim privacy rights that do not exist. Because these plaintiffs have committed crimes, they have forfeited their "right to be left alone." The prisoners have become a charge of the state and have made themselves public figures. Therefore, the prisoners enjoy no privacy rights so none have been violated.; 3. The court cites numerous precedents that support its decision that segregation of HIV-positive inmates does not constitute cruel and unusual punishment. In addition, the court found, "[i]t appears . . . that the plaintiffs in this case selfishly assert their rights to expose other inmates to their problems independent of any right of the other inmates to be protected from what is admitted to be a dread fatal disease of the plaintiffs (all of whom are capable of transmitting the disease)." The court also suggests that failure to segregate HIV-positive inmates might violate the eighth amendment rights of the healthy inmates. Therefore, the court supports the policies currently in force.; 4. The plaintiffs' claim that they have a right to a hearing before segregation lacks merit. A hearing is supposed to show why an infringement is being imposed on another. However, in the case of an inmate who carries an incurable and deadly disease, the reason for the segregation is obvious. Also, a prisoner has no right or interest in where or what type of confinement he receives. Because the prisoner has no say in where he is placed, he cannot demand a hearing to determine whether he will be segregated.; 5. The various prison programs to which the plaintiffs assert they have a right are not protected by the Equal Protection Clause of the fourteenth amendment. These opportunities are privileges and not rights. Disqualification from these programs because the prisoner is HIV-positive is justifiable on the basis of institutional and individual security and health.; 6. In deciding the issue of whether to segregate HIV-positive inmates from the general prison population, most courts follow the doctrine that prison officials are best qualified to make that decision. However, Lareau v. Manson held that the failure to screen inmates for communicable diseases violated the rights of noninfected inmates. Thus, failure to screen and segregate HIV- positive inmates might violate the rights of noninfected inmates. It should therefore be a decision made by the prison officials, who are in the best position to judge the safety of the prison population.; 7. For a prisoner to state a claim of insufficient medical care, he must allege acts or omissions that are deliberately indifferent to serious medical needs. In this case there is a relatively new disease for which treatment in the form of the drug AZT has just recently been approved. Medical personnel who are specialists in AIDS are fairly rare and difficult for a prison to acquire. Thus, prisoners with AIDS cannot expect medical attention from experts in the field of AIDS. Furthermore, every experimental and expensive drug treatment that is available is not required by the Constitution to be given to prisoners at the public's expense. "AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable." The medical and psychological treatment that the inmates were receiving was reasonable and therefore was constitutional.; 8. The HIV-positive inmates are entitled to more time in the prison law library than what has been allowed. The court suggested that these inmates be allowed access to the library when the rest of the prisoners are working or recreating. Whether constitutionally adequate assistance is available to the HIV-positive inmates is not clear from the evidence presented. The court suggests the prison change its policy somewhat to allow the HIV-positive prisoners more time in the law library or more assistance from someone trained in the law. However, the recent policy as to the library hours for HIV-positive inmates does not constitute a denial of meaningful access to legal materials or access to the courts in violation of the first or fourteenth amendment.; 9. To decide whether the prison officials violated the rights of the HIV-positive inmates under the Rehabilitation Act of 1973, the court had to determine whether the inmates' fit the definition of being "otherwise qualified handicapped individuals." The court found that HIV-positive inmates are not otherwise qualified because: 1) the transmission of the virus through the exchange of bodily fluids by homosexual rape, from blood resulting from fights, from I.V. drug use, and from tattooing are hazardous possibilities in the prison setting; 2) the risk of transmission is perpetual; 3) the severity of the risk is great--the potential harm to third parties through transmission of HIV is ultimately death; 4) the probability of transmission in prison is significant. Additionally, integrating the HIV-positive inmates with the general prison population with reasonable accommodations does not eliminate the significant risk of transmission. Thus, the plaintiffs are not otherwise qualified because of the risk of transmission that they create and therefore do not fall under the protection of the Rehabilitation Act of 1973.; Update since the AIDS Litigation Project I:; This case was first reported in the AIDS Litigation Project I; the defendant's motion for summary judgment was denied. Since that time, the case has been decided, denying the plaintiffs the requested relief and dismissing their claims.

[314]. Muhamad v. Frame, No. 87-5282 slip op. (E.D. Pa. Sept. 11, 1987): FACTS: An inmate filed a civil rights action alleging that correctional authorities violated his constitutional rights by forcing him to be housed with carriers of HIV.; STATUS: The court dismissed the case for plaintiff's failure to show that he is at risk of contracting AIDS and for failure to state facts indicating how he himself is endangered by the presence of HIV-positive inmates. The court noted that more than the mere presence of HIV-positive inmates in the prison populations is needed to establish a claim.

[315]. Farmer v. Moritsugu, No. 89-C-926-S, U.S. Dist. Ct., W. Dist. Wis., AIDS Litigation Reporter 5/11/90.: FACTS: A former inmate of a Wisconsin federal correctional institution filed suit against the federal Bureau of Prisons medical director Dr. Kenneth Moritsugu, for putting into effect a regulation prohibiting HIV-positive inmates from working in food handling and health care positions in the federal prison system.; A federal district court judge has upheld the constitutionality of this regulation. The judge said that the regulation helped to maintain the security of the prison. Although HIV cannot be transmitted through the casual contact involved in these prison jobs, some inmates would nonetheless be upset by allowing HIV-positive inmates to perform these jobs, causing disruptions.

[316]. Hays v. Idaho Corrections Dep't, Nos. HC-2799, HC-2800, Idaho 4th Dist. Ct., Ada Cty., AIDS Litigation Reporter 10/13/89.: FACTS: A judge has dismissed an HIV-negative segregation suit brought by two inmates. They had alleged that the state prison population was endangered by the Correction Department's failure to segregate HIV-positive prisoners. The plaintiffs charged that inmate rape and the exchange of intravenous drug needles put the prison population at risk of contracting HIV.; The plaintiffs failed to show that the risk of contracting HIV is so great that their constitutional rights are violated and that segregation is necessary.

[317]. Williams v. United States Parole Comm'n, 875 F.2d 869 (6th Cir. 1989).: FACTS: The plaintiff is an inmate at the Federal Prison in Ashland, Kentucky. He alleges that the defendants improperly allowed prisoners with AIDS to enter the prison population, thereby causing the plaintiff to contract the disease.; The plaintiff appeals the district court's order on procedural grounds.; STATUS: The court did not uphold the plaintiff's procedural claims, and the case must still be decided on the merits.

[318]. Parker v. Evans, No. 1:89-CV-1604-MHS, U.S. Dist. Ct., N. Dist. Ga., AIDS Litigation Reporter 8/11/89 (Complaint filed 7/18/89).: FACTS: Three prisoners in the Georgia Corrections Department's Training and Development Center have filed suit against the Corrections Commissioner. They request that the prisons return to the policy of segregating HIV-positive inmates from the general prison population.; The plaintiffs allege that HIV-positive inmates share bath areas and shaving tools with the rest of the population. They contend that the risk of cutting the skin and being exposed to HIV- positive blood is great and thus requires the segregation of HIV- positive inmates from the rest of the prison population.; In the past, Georgia's policy had been to segregate HIV- positive prisoners. However, the increased number of HIV-infected prisoners caused the prison system to change this policy.; STATUS: This case is awaiting trial.

B. Civil Rights of Inmates

1. Disclosure of serological status; privacy & confidentiality

[319]. Rodriguez v. Coughlin, No. CIV-87-1577E, U.S. Dist. Ct., W. Dist. N.Y., 1989 U.S. Dist. LEXIS 15898, June, 2, 1989.: FACTS: The plaintiff was a prisoner with AIDS at the Groveland Correctional Facility (Groveland). When transferred to Groveland, the plaintiff was made to wear a hygiene suit which completely enveloped him. The plaintiff protested, claiming it marked him as having AIDS. Later during his stay at Groveland, the plaintiff claimed that the defendants informed various inmates that the plaintiff suffered from AIDS. He was harassed and threatened by the other inmates. The plaintiff argues that his constitutional right to privacy was violated by the defendants' alleged disclosure of the plaintiff's medical condition to the other inmates.; ISSUES: 1. Does the plaintiff's amended complaint alleging a violation of his constitutional right to privacy state a cognizable claim?; 2. Are the defendants entitled to qualified immunity and thus should their motion to dismiss for failure to state a claim be granted?; 3. Should the defendant Coughlin's motion to dismiss be granted?; HOLDING: 1. The plaintiff's amended complaint does state a valid constitutional claim of a right to privacy regarding his medical condition.; 2. The defendants are not entitled to qualified immunity and therefore their motion to dismiss is denied.; 3. The defendant Coughlin's motion to dismiss should be granted.; REASONING: 1. The plaintiff has a valid constitutional claim in that he has a right to privacy regarding his infection with HIV. Disclosure of one's medical condition is a private matter. There can be serious implications for an individual if this medical information is revealed, especially where AIDS is concerned. The prejudice and fear of AIDS makes it essential that those infected be protected from unwanted disclosure.; 2. Qualified immunity does not usually support the granting of a motion to dismiss for failure to state a claim. The scope of qualified immunity will be related to facts as yet not established. A finding of qualified immunity is not apparent from the face of the complaint, so such a defense may not be invoked to support a motion to dismiss.; 3. There is no allegation or evidence presented that the defendant Coughlin was personally involved or had knowledge of the alleged constitutional violations. Therefore suit against him is dismissed, because personal involvement is a precondition to an award of damages for a constitutional violation.

[320]. State Dep't of Public Health v. Wells, No. 6975, 1989 Ala. Civ. App. LEXIS 290, Sept. 13, 1989.: FACTS: A prisoner was held at the Jackson County Jail awaiting transfer to the state penitentiary. While in the county's custody, county health officials offered the prisoner a confidential, voluntary HIV test, which he accepted. After the prisoner was informed privately of his result, the County Sheriff's Department subpoenaed the health officials for the test results. The health officials refused to comply.; ISSUES: 1. Could the prisoner have been subjected to compulsory testing, thereby removing the factor of confidentiality from his voluntary test?; 2. May the court override the authority of the public health officials in order to create exceptions to the confidentiality requirements of state law?; 3. Is the sheriff's duty to protect the health and safety of the prisoners in his custody compromised by the refusal to divulge the HIV status of this prisoner?; HOLDING: 1. This prisoner would not have been subject to compulsory testing. His voluntary test therefore remains confidential.; 2. The court may not overrule the authority which the legislature expressly vested in the State Committee of Public Health.; 3. The sheriff's duty to protect the prisoners in his custody is not compromised by the refusal to divulge the HIV status of this prisoner.; REASONING: 1. The issues in this case depend upon the in