The Wall Street Journal - 18 Nov 1992
Wade Lambert and Junda Woo, Staff Reporters of The Wall Street Journal

The lawsuit is one of the first in which an HIV-infected person has been accused under a wrongfuldeath law of passing on the virus that causes AIDS. But attorneys say more such suits are likely as the survivors of AIDS victims become aware that they may have grounds to litigate.

Suits by the AIDS victims themselves against sex partners are already on the rise, lawyers say, but the plaintiffs face the possibility that they may die before their cases are resolved.

In the New York case, the parents of Anthony Blanco, who died in September 1990, accused John Sullivan, their son's lover of 15 years, of fraudulently and negligently concealing that he was HIV-positive. Mr. Sullivan said in court documents that he didn't learn that he was infected with the virus until a year before his partner's death. He also said in court documents that Mr. Blanco was an intravenous drug abuser before the two men met, and that Mr. Blanco was sexually promiscuous during their relationship.

Mr. Sullivan argued that the suit should be dismissed because the parents, Mamie and Joseph Blanco, wouldn't be able to prove that Mr. Sullivan transmitted the virus to their son.

State Judge Louis Sangiorgio didn't rule on the merits of the case, but he said the suit should be allowed to proceed. The judge said no previous court in the state has ruled on whether HIV transmission could fall under the wrongful-death statute, which allows survivors to sue for damages.

But Judge Sangiorgio said judges in other cases have allowed suits by sex partners "for wrongful transmissions of sexually transmitted diseases on theories of either fraud or negligence." Because Mr. Blanco could have sued his partner for damages for transmission of HIV, the surviving parents can sue for wrongful death, Judge Sangiorgio ruled

Larry Gostin, a health law professor at Harvard University, said courts have tended to rule that HIV-infected people have a legal obligation to disclose their health status to partners. "If the person knew and didn't disclose the HIV status to the partner, most courts are finding that negligence occurred, and damages are often awarded" to the partner, Prof. Gostin said.

But he said proving HIV transmission is difficult. The plaintiff, for instance, typically would have to show that he or she was monogamous and didn't have any other possible exposure to the virus. Prof. Gostin said a plaintiff could also present evidence that the defendant's HIV was genetically similar to the plaintiff's.

Prof. Gostin and advocates of HIV carriers' rights warned that such cases may actually hurt public-policy efforts to fight the transmission of acquired immunodeficiency syndrome. "The court is punishing you for knowing and not telling, but the court won't punish you for not knowing," Prof. Gostin said.

Evan Wolfson, an attorney with Lambda Legal Defense & Education Fund, which handles gay-rights and HIV-rights cases, said such cases "distract from the majority of cases of AIDS in which people don't know that they are infected." Mr. Wolfson, who didn't work on the Blanco case, said it should have been dismissed as groundless. "How can they prove that the survivor infected the deceased? There is no evidence to support that claim but conjecture," he said.

Mr. Wolfson also said the Blanco case is an example of families seeking to punish partners of homosexual sons. "The deceased made no claim against his lover, but the family is turning around and using it as a weapon to get the money," he said. Mr. Blanco left his estate to Mr. Sullivan, another matter that is being challenged by his parents.

Bernadette Panzella, the attorney for the Blancos, said she was pleased with the judge's ruling but added, "This is not going to be easy because we don't know enough about AIDS. It is a worthwhile case in my opinion because whenever anyone has acted irresponsibly they have to be made to be held responsible."

Mr. Sullivan's attorney didn't return a call seeking comment.

(Blanco vs. Sullivan, New York State Supreme Court, Staten Island)

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Corrections & Amplifications

ANTHONY BLANCO, whose parents sued his companion after he died of AIDS, left a portion of his estate to his parents and brothers. Yesterday's Legal Beat column incorrectly reported that all of the estate was left to his companion.

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