Lawsuit dismissed against paper that revealed HIV status

Privacy | Feature | January 26, 2006

NEWS MEDIA UPDATE   ·   TEXAS   ·   Privacy   ·   Jan. 26, 2006


Lawsuit dismissed against paper that revealed HIV status

  • A newspaper, which ran a quote naming someone as HIV positive, did not violate a Texas law designed to prevent the disclosure of HIV tests because the paper did not report the actual test results, an appellate court ruled.

Jan. 26, 2006  ·   A Texas law designed to prevent the disclosure of HIV test results should not be interpreted to cover any disclosure of a person's HIV status, the Texas Court of Appeals in Dallas ruled Tuesday.

The law, which allows damages to be recovered from anyone who discloses an HIV test result, excludes the media or other members of the public who did not have access to a patient's medical records, a unanimous three-judge panel ruled.

The suit arose out of a Dec. 4, 2003, article by J.D. Sparks in the Dallas Observer headlined "Fallen Angel." The article included a quote from Jean Morris, the director of administration at the Dallas Cathedral of Hope church, which named the plaintiff -- who filed suit as John Doe -- as HIV-positive.

"It's a significant case because although this is the first time an appellate court has reached this issue, it's far from the first situation where lawsuits have been filed or threatened because of this statute," said James Hemphill, attorney for New Times, publisher of the Observer. "It's the right result, but we had lacked a court case to point to. The court came to the right conclusion that the scope of the disclosure is not universal but limited to a particular subset of people."

The plaintiff alleged that since the article could have been read by as many as 300,000 people, he could have been entitled to recover more than $1 billion dollars and if the violation was willful, as much as $3 billion. The plaintiff performs in the musical group "Positive Voices" which openly identifies all members, including the plaintiff, as HIV-positive, and performs publicly in Texas.

A trial court denied the New Times' motion for summary judgment to dismiss the case, and the New Times appealed to the Texas Court of Appeals.

The law at issue sets out certain circumstances where people may be required to undergo HIV-testing -- for employment or insurance coverage, for example -- and provides that the results must be kept confidential.

The court, quoting the law, found that it "requires that the person to be held liable possess or have knowledge of a test result and must release or disclose the test result," Justice Mark Whittington wrote for the panel.

A "test result," while read broadly, cannot be so broad as to include people who "had no knowledge of or connection to [a person's] medical information," wrote Whittington.

"It's part of an overall scheme that allows for HIV-testing," Hemphill said. "If employers or insurers can mandate the testing, they must keep it confidential. It's an expansion of the doctor-patient privilege to include people who have access to HIV results. It was never intended to apply to the press and general public."

(New Times, Inc. v. Doe; Media Counsel: James Hemphill, Graves Dougherty Hearon, Austin, Texas) -- CM


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