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Wife wins case against GPs who did not disclose husband’s HIV status

Sydney Christopher Zinn

In a landmark case about patient confidentiality, two GPs in Australia have been successfully sued for breach of contract and for negligence for failing to ensure that a man who tested positive for HIV told his wife about the result.

The woman, known as PD and who contracted the infection, has been awarded $A720 000 (£288 000; $US473 400 ; €404 200) by the Supreme Court of New South Wales, which found that the doctors should not have assumed she would have been informed (24 May, p 1107).

The 28 year old woman and the man from Ghana were tested together for HIV in November 1998 at a medical centre in suburban Sydney before getting married and having unprotected sex.

The GPs, Dr Nicholas Harvey and Dr King Weng Chen, claimed they told the man to inform his wife and could not have foreseen he would be so irresponsible. Their defence team also argued they were bound by confidentiality not to contact her.

Justice Cripps said the doctors did not properly counsel the man, known as FH, on his obligation to tell her of his HIV status.

"Had FH been asked whether he proposed to tell his future wife of his condition and been reminded at that time if he had sexual intercourse with her without telling her of it he was committing an offence he would, I infer, have said he would tell her," he said.

He also said the level of counselling provided by one of the doctors fell far short of that expected of a competent medical practitioner, with PD picking up the results from a receptionist and not being informed personally.

Her lawyer David Hirsch said the issue was not patient confidentiality because the case concerned the many opportunities that both GPs had to intervene to make sure the man disclosed his HIV status—such as ensuring both parties were both given their results at the same time.

"Of course she’s indicated that no amount of money is going to replace what she’s lost," he said.

"She’s an incredibly brave lady, and I think we all as citizens owe her a debt to have taken this on because I think we’ve all learnt something from it.

"I have confidence that lives will be saved because of this judgment."

A sexual health expert told the court that one of the doctors could have contacted the chief health officer, who has the power under the Public Health Act to authorise the release of a patient’s HIV status if their behaviour endangers others.

The man, now believed to be in New Zealand or Africa, forged documents to show his wife that he had a negative and not positive result.

A spokesman for the New South Wales branch of the Australian Medical Association said it not had time to digest the judgment but that findings like this put doctors in a dilemma as to where their duties lie.
 

Other related articles in BMJ:

NEWS ROUNDUP
Patient confidentiality challenged over HIV test results.

Christopher Zinn
BMJ 2003 326: 1107-0. [Abridged text] [Full text]  

 

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Collections under which this article appears: HIV Infection/AIDS Confidentiality

© 2003 BMJ Publishing Group Ltd