The Wall Street Journal - 7 Dec 1992
Wade Lambert, Staff Writer The Wall Street Journal

In the lawsuit, a surgical technician has accused a patient of fraud for not disclosing that she had AIDS before the technician was nicked by a scalpel used on the patient. Although public attention in recent years has focused on whether health-care workers must disclose their HIV-status to patients, this case is apparently the first to argue that patients have a duty to inform their doctors and nurses. Moreover, it appears that no similar fraud claim has ever been made in connection with any other illness, attorneys said.

"This case ultimately will define the duty of disclosure from the patient to health-care workers," said Rex Julian Beaber, the attorney for the surgical technician, Diane Boulais. "It probably means more to health-care workers in general than to Ms. Boulais," who has tested negative for HIV, the virus that causes AIDS.

Ms. Boulais, who said in the suit that she lives in fear of developing the disease, is seeking unspecified damages for emotional distress, medical treatment and psychological care.

But advocates for the rights of people with AIDS say the case could send the wrong message. Instead of requiring patients to disclose their HIV status, they say health-care workers should follow "universal precautions" by treating all patients as if they might be infected with the virus. Scientists say that most people with HIV, which can be transmitted through blood-to-blood contact or sexually, don't know they are infected.

"It is irrational to go after the individual. Using universal precautions is the only thing that works, because you don't know, you can't be sure" that a patient is infected with HIV, said Evan Wolfson, a lawyer for the patient, Jan Lustig. Mr. Wolfson is a staff attorney at Lambda Legal Defense and Education Fund, New York, which handles gay and HIV-rights cases.

Knowing a patient's HIV status can give health-care workers "a false sense of security," said Nancy Dickey, a trustee of the American Medical Association, which opposes mandatory HIV testing. "Testing doesn't guarantee safety, because there is a window of time when a patient could be infected but still test negative."

Ms. Boulais's suit, filed a year ago, stems from what should have been a minor procedure. Ms. Lustig had undergone breast surgery, and in a follow-up examination in July 1991, her doctor found that a suture had been overlooked. After he removed the suture with Ms. Boulais's assistance, Ms. Lustig heard a yelp: Ms. Boulais had been cut. That's when Ms. Lustig first disclosed to her doctor and his staff that she was HIV-positive, according to both parties in the case.

Ms. Lustig, a former psychologist who counseled AIDS patients, said in court papers that she kept her HIV status a secret from her doctors and their staff for fear that she would be discriminated against. Ms. Lustig, who has known she was HIV-positive for five years, said she sought the surgery for cosmetic and medical reasons, though Mr. Beaber maintains there was no medical need.

Ms. Lustig's attorneys said in court documents that if anything was to blame for Ms. Boulais's suffering, it was her and the doctor's "sloppiness," and their failure "to take even minimal infection control procedures," such as wearing surgical gloves.

But Ms. Boulais's lawyer said that his client and the doctor, Neal Handel, would have taken additional precautions if they had known that Ms. Lustig was infected. He said that by concealing her HIV status, Ms. Lustig had deprived Ms. Boulais of the right to protect herself.

In previous cases over HIV infection on the job, health-care workers have typically sued their employer or the supervising physician -- alleging negligence, for example. But Mr. Beaber, who is Dr. Handel's brother-in-law, said Ms. Boulais isn't interested in pursuing such a claim, because she wants to send a message to patients that "this kind of deceit doesn't have any place in the relationship" between health-care workers and people they care for.

The trial, expected to last about a month, also will address Ms. Lustig's counterclaims that her privacy was invaded when Ms. Boulais publicized her case. Ms. Lustig also is seeking to have Dr. Handel and the Breast Center, where the surgery was performed, held liable for any damages that might be awarded to Ms. Boulais.

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