Miami Herald - Friday, August 7, 1998
Yves Colon, Herald Staff Writer

Jane Doe's HIV status is not a private matter protected by Florida law, which applies to the disclosure of HIV test results, not an individual's condition in general, according to the motion to dismiss a lawsuit filed by the girl's family. That suit alleged that school officials had maliciously forced the girl -- identified in court documents as Jane Doe -- to disclose her medical condition.

Attorneys for the archdiocese could not be reached for comment Thursday. However, in an earlier interview, attorney Jim Gilbride said the girl's family had "no basis for the suit whatsoever." Gilbride also had rejected the family's offer to settle.

Robert Buschel, the lead attorney representing the girl's family, said Gilbride's motion for dismissal was nothing more than a "delay tactic that denies quick justice to the girl's family.

"This is a slap in the face of any person who's infected with HIV," said Buschel, with the Fort Lauderdale firm of Ferrero, Buschel, Carter & Schwartzreich. "The state has said even though you're infected with HIV, you still enjoy the right to privacy because of the consequences of what happens when ignorant people find out."

Thursday's motion to dismiss means that Buschel and Gilbride will have to go to court on Oct. 2 to argue whether the case should be thrown out or go to trial.

Meanwhile, Buschel has forwarded the family's complaint about privacy-law violations to Miami-Dade State Attorney Katherine Fernandez Rundle. He is also asking her office to investigate the possibility of witness tampering, charging that someone called the girl's aunt offering the family money to drop the case.

"We have received correspondence from her lawyer and we're considering what appropriate action to take," said Don Ungurait, a spokesman for the state attorney.

The case became public last month when Buschel filed a suit on behalf of the family asking for unspecified damages.

The suit alleged that the 15-year-old girl was forced to stand before her classmates and confess that she was carrying the virus.

The state privacy law reads, "The identity of a person upon whom a test has been performed is confidential. No person to whom the results of a [HIV] test have been disclosed may disclose the test results to another person."

The original suit also named Michelle Dolyk, St. Francis Xavier's principal, and pastor Jack Lau as defendants. The motion filed in Miami-Dade Circuit Court Thursday asked the court to dismiss several counts that alleged Dolyk and Lau conspired to make the girl confess her medical status to classmates.

According to the motion, there isn't enough evidence to say either Dolyk or Lau did something wrong.

Last month, Lau said that the sense of confidentiality and dignity of people with AIDS is "utmost in my regard. The principal's attitude would be the same as mine in divulging something so personal."

Buschel's case will not likely hold up in court, according to the archdiocese's motion, because "apart from defendants' alleged disclosure of private fact, plaintiff has not alleged any other facts by defendants that can be characterized as outrageous, willful, malicious, unjustified, capricious, or so extreme as to be beyond all bounds of decency."

The girl, her lawyers say, had to drop out of school to avoid her classmates' ridicule. She is being schooled at home and hopes to enter another Catholic private school in the fall. The girl's mother died of AIDS-related complex last year.
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