Australian State Supreme Court Hears ‘Landmark’ Case Regarding Confidentiality of Premarital AIDS Testing
An Australian state Supreme Court is currently hearing a "landmark" case on the transmission of HIV within marriage, which may determine whether a doctor is obliged to breach confidentiality with a patient in order to protect his or her partner from HIV infection, Melbourne's Age reports (Lamont, Age, 5/7). A 28-year-old woman known as PD is suing Drs. Nicholas Harvey and King Weng Chen of the Alpha Medical Center for negligence and breach of contract for failing to reveal her fiance's HIV status following a joint premarital consultation about sexually transmitted diseases in November 1998 (Lamont, Sydney Morning Herald, 5/8). Dr. Chen informed PD's fiancé, who had recently emigrated from Ghana, that he had both HIV and hepatitis B, advising him not to have unprotected sex and to attend the Royal Prince Alfred Hospital's HIV clinic. The fiancé told his wife that he was HIV-negative, falsifying a test result certificate to back up his statement (Lamont, Sydney Morning Herald, 5/6). PD, who had tested HIV-negative during the premarital consultation, did not find out the true results of her husband's tests until 1999 when she was searching for his immigration papers in his suitcase. She was pregnant, and she later tested positive for hepatitis and HIV. The infant has tested negative for both hepatitis and HIV (Australian Associated Press, 5/5).
Ian Harrison, counsel for the defense, argued that if the doctors had breached the fiancé's confidentiality, they would have opened themselves up for damage suits and charges of professional and criminal misconduct (Age, 5/7). The dilemma for the doctors was "being sued for negligence by someone in the position of the plaintiff or being sued for damages for revealing someone's HIV status," Harrison said (Sydney Morning Herald, 5/6). Jay Anderson, PD's lawyer, on Monday argued that because the couple was jointly consulted about the tests at the clinic, they should have been told about each other's results (Daily Telegraph, 5/6). Anderson also said that the doctors did not take proper follow-up precautions with the couple to ensure that PD did not contract the diseases (Australian Associated Press, 5/5). Sexual health expert Dr. Carmella Law, who testified for the plaintiff, said that when Harvey was unable to contact the man by phone or mail in May 1999 and when he discovered that the man had failed to attend the HIV clinic to which he was referred, he should have acted to ensure the safety of his other patient, PD (Sydney Morning Herald, 5/8). Linda Mann, an expert medical witness for PD, said that the doctors should have contacted the medical defense union for advice as well as the public health authorities after discovering the man's failure to attend clinic appointments. The doctors could have sought permission from the director-general of health to breach confidentiality, she said, adding, "It is an awful dilemma [but] not insoluble" (Sydney Morning Herald, 5/6). The hearings before Acting Judge Jerrold Cripps of the New South Wales Supreme Court are ongoing (Daily Telegraph, 5/6).
Canadian Woman Sues Doctors for Failing To Perform Prenatal HIV Testing
In related news, an Ontario woman is suing three doctors for failing to perform prenatal HIV testing, which she alleges led to vertical HIV transmission to her child, the Toronto Globe and Mail reports. The woman, who gave birth in 2000, was seen by three doctors who ordered a series of routine tests but failed to offer an HIV test, according to David Harvey, the woman's lawyer. The case, which is the first of its kind in North America, comes amid calls from a "growing number of public health experts" for routine prenatal HIV testing (Favaro, Toronto Globe and Mail, 5/7). The Society for Obstetricians and Gynecologists, the College of Family Physicians of Canada and the Canadian Pediatric Society all have recommended that physicians routinely offer HIV testing to all women. Without treatment, 15% to 30% of infants born to HIV-positive women test positive for the virus (Favaro, CTV Online, 5/7). However, if the pregnant woman and the newborn receive antiretroviral treatment, the risk of transmitting the virus to the infant is around 1%. Despite these figures, only about 80% of pregnant woman in Ontario are currently tested for HIV (CP/Toronto Star, 5/6). Many health care professionals are pushing for a routine testing policy, similar to a policy that is in place in Alberta, Canada, where 98% of pregnant women are tested for HIV (Robertson, Canadian Television, 5/6). A date will be set for the trial sometime this summer (Toronto Globe and Mail, 5/7).
CTV News and Canada AM on Tuesday reported on the case. Video clips of each segment are available online in Windows Media.