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State Bar of Texas Health Law Section Report (Fall 1996) Health
care professionals who discover some disease or medical condition which
their services or products have likely caused to a particular recipient
and which may endanger a readily identifiable third party, owe a duty to
reasonably warn the third party to the extent that such warning may be
given without violating any duty of confidentiality to the recipient of
services or products. The
trial court had granted summary judgment to the hospital but the court of
appeals reversed and remanded that judgment. In its analysis on rehearing,
the court addressed whether a duty exists on the part of a health care
provider or supplier of products to notify a third party that he or she
may have been exposed to HIV through someone the health care professional
suspects of having HIV as a result of the professional's services or
products. On motion for rehearing, the court of appeals upheld its
original opinion but used a different analytical framework. This
case involved a plaintiff who was engaged to and later married a
hemophiliac who received blood products from Santa Rosa Hospital prior to
the time that HIV was identified as transmissible through the blood supply
and prior to the time that a method was available to test the blood for
HIV. The plaintiff, Linda Garcia, married Adalberto Balderas in 1988, and
in December 1989, Balderas became ill and was tested for HIV. In 1993, he
died of AIDS. The plaintiff sued Santa Rosa Health Care Corporation for
not informing her of her ex-husband's probable infection with HIV. Her
cause of action was based on negligent failure to notify and intentional
infliction of emotional distress. The
hospital moved for summary judgment on the ground that it owed no duty to
inform the plaintiff of the deceased's probable exposure to AIDS and that
the statute of limitations barred her claims. Among other defenses, the
hospital asserted that a disclosure of information to a third party would
have constituted a violation of the deceased's right of confidentiality
under the Communicable Disease Prevention and Control Act. The court,
however, held that: "the Communicable Disease Prevention and Control
Act would not bar the present lawsuit for failure to disclose
non-confidential information of this nature that may be necessary to
protect a third party from exposure to AIDS." After
reviewing the language of the Communicable Disease Prevention and Control
Act concerning the disclosure of HIV and AIDS test results, the court held
that environmental and situational factors such as these are not covered
by the statute and do not carry the same guarantee of confidentiality as
formal testing. Thus, the Act would not bar the lawsuit for failure to
disclose nonconfidential information that may be necessary to protect a
third party from exposure to aids. The court stated "the risk,
foreseeability, and likelihood of injury to these persons from the spread
of Balderas' infection clearly justify placing some burden on Santa Rosa
both to reasonably inform Balderas of his probable infection with AIDS and
to reasonably notify, within the bounds of the law, those with whom he may
have had intimate contact or otherwise spread the virus." The court
further noted "even after Santa Rosa became aware that Balderas and
Garcia were planning to marry and that Garcia was at risk of being exposed
to the AIDS virus, it made no effort to notify her directly, or indirectly
by notifying Balderas, of his probable infection with AIDS."
Accordingly, the court extended the duty of health care professionals to
include warning third parties who may have been exposed to HIV. This
extension of liability is particularly unusual since the evidence
indicated that the hospital had made several good faith attempts to notify
Balderas of his possible exposure to AIDS. Balderas claimed that he never
received the letters sent to him by the hospital. He never made his
appointments for annual physicals because of "job conflicts." Statute
of Limitations In
further support of the plaintiff's decision, the court held that the duty
to warn cause of action is not governed by the medical malpractice statute
of limitations in Article 4590(i) Section 10.01, which requires a health
care liability claim to be filed within two years from the occurrence of
the tort. Therefore, the lawsuit was not barred by the statute of
limitations. Instead, it was governed by the statute of limitations found
at Texas Civil Practice and Remedies Code Annotated § 16.003,
and therefore the discovery rule applied to the case. "Specifically,
negligent transmission of the AIDS virus has been held to be an inherently
undiscoverable cause of action subject to the discovery rule." All
health care professionals or facilities who order or perform HIV testing
should reevaluate their notification procedures in view of this holding. Brenda
T. Strama, Vinson & Elkins, Houston, Texas . Footnotes: 1. Exemption
Ruling, C.H. Wilkinson Physician Network, 1996 WL 343384 (I.R.S.) (June
19, 1996).
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