Courts uphold HIV test for rapist, but not for child molester

Mandatory HIV testing of convicted sex offenders can be ordered by trial judges. In two separate California appeals court cases, the judges reached opposite conclusions regarding this testing. One court upheld the mandatory testing of a man convicted of rape. In another California case, regarding a convicted child molester, the court overturned the order to submit to mandatory testing. The appeals court said that the jury had not provided enough information to determine whether or not testing was justified.     

医患纠纷＂私了＂协议书法律问题探讨

实践中,发生医疗纠纷,医患双方以“私了”的方式达成赔偿协议的案例并不少见,但“私了”的协议书是否具有法律效力在法律界仍有较大争议。本文拟通过对“私了”协议签订的法律依据、法律效力、“私了”协议患方易反悔的原因和医院签署“私了”协议书时应注意的法律问题的探讨,以期对医院非诉讼解决医患纠纷有所裨益。     

11th Circuit affirms dismissal of job bias claim as time barred

A plaintiff lost his HIV employment discrimination lawsuit because he filed after the 90-day right-to-sue period. The appeals court upheld a lower court ruling that dismissed the lawsuit after the plaintiff failed to retrieve the certified right-to-sue letter from the post office, in time. The court then established a three-day grace period for other similar cases.     

Judging teenagers: how minors fare when they seek court-authorized abortions

Judicial bypass laws, laws that say that an unmarried minor who seeks an abortion is required to notify or obtain consent of their parents, were passed with the idea of encouraging family communication. However, family communication is not being encouraged in many United States families. Many minors feel that they cannot do this. They are often living in a difficult tumultuous family situation. Many judges believe that, when this is the case, forcing the girl to appear in court before she can have an abortion does no good. Many people believe that these laws have made it harder for teenagers to obtain abortions. This is what the sponsors of these laws had in mind. Many teenagers have to travel long distances to get to court. Courts are not open evenings or weekends. On the whole, it is the 16 and 17-year-olds who go to court. Younger teenagers are more likely to consult their parents. In Massachusetts between April 23, 1981--the day the abortion consent law took effect--and mid-September, 1983, 1571 minors went to court. Of the 563 petitions heard by the Suffolk County Superior Court in Boston, 297 (53%) were filed by 17-year-olds; and 76 (31%), by 16-year-olds. In Minnesota, 1478 minors went to court between August 1, 1981 and August 31, 1983. The juvenile court in Minneapolis which heard 974 of these petitions reports that 527 (54%) were filed by 17-year-olds; and and 326 (33%) by 16-year-olds. In the Minneapolis-St. Paul area, the minors who go to court are mostly white, and middle or upper-class. In Minnesota, Massachusetts, and Rhode Island there is a 2-4 day wait for a hearing. Minority, poor, and rural minors are denied the option of going to court.     

Guardian appeals ruling

A court-appointed guardian for 4-year-old Nikolas Emerson asked that the Maine Supreme Judicial Court force the boy's mother to administer antiretroviral drugs to him, despite her concerns. The guardian alleged that the lower court failed to take medical science into consideration when the court permitted the mother to discontinue triple combination therapy for her son because of bad experiences with the drugs. The guardian must show that the lower court judge made an error in the law in order to have the original ruling overturned.     

Court says dentists not liable for HIV-based discrimination

A State appeals court ruled that under New York law, a dentist's office is not considered a place of public accommodation. The court dismissed a citation issued by the Division of Human Rights against Dr. Jeffrey L. Schulman, whose associate, Dr. Edward Anker, refused to provide dental care to an HIV-positive patient. The court ruled that private dental offices cannot be construed as clinics and are therefore exempt from human-rights laws prohibiting disability-based discrimination.     

Court reverses jury verdict in job discrimination case

A Florida appeals court overturned a $382,000 judgement made in favor of Roger P. Kwiatek Jr., who claimed he was forced out of his job because of his HIV infection. The court ruled that the case should not have gone to a jury because the plaintiff failed to show any adverse employment action by his employer. Kwiatek had favorable performance reviews in his first two years, but after this time his supervisors noted tardiness and absences. He was diagnosed with HIV in 1990 but did not disclose that fact to his employer until 1993, when a new manager demanded an explanation for his many absences. Kwiatek claims he suffered disparate treatment from the time he disclosed his infection. The court decided that Kwiatek did not prove that the work environment was abusive, based on previous Americans with Disabilities Act rulings, and the court held for the company.     

Federal appeals court tilt in favor of ADA defendants

Results of a study conducted by LRP Publications indicate that plaintiffs who file discrimination lawsuits under the Americans with Disabilities Act (ADA) have only a 20 percent chance of winning their case if the case reaches Federal appeals courts. Editors from LRP examined 261 Federal decisions, including employment and non-employment claims, between 1994 and 1997. Some courts are more likely than others to hear ADA claims and both the 3rd Circuit court, based in Philadelphia, and the District of Columbia Circuit court ruled in favor of plaintiffs at least half the time. The 10th Circuit court, based in Denver, has a greater percentage of ADA cases decided against the plaintiff than any other circuit court. A pro-employer trend in ADA litigation was also noted in the LRP study.     

Court dismisses diner's claim that food contained blood

A State appeals court in New York dismissed McDonald's restaurant patron Joseph Montalbano's claim that he was served and ate French fires covered in blood. Montalbano brought a suit to a Suffolk County court asking for damages for fear of AIDS. The county and appeals court agreed that Montalbano had no evidence that he was exposed to HIV, did not provide the bag with the alleged blood, did not have the alleged blood tested for HIV, and was behaving in an irrational and unreasonable manner. Montalbano did not test positive for HIV antibodies.     

Suit over lapsed coverage is returned to State court

Two third-party medical providers sued Tropical International Corp. for recovery of $133,785 incurred while a Tropical employee was being treated for end-stage AIDS. After Tropical changed its health-care insurance plan from Humana to Physicians Corp. of America, Leonor Alvarez began treatment for her final illness. Humana refused to pay the claim asserting that coverage had lapsed. Physicians Corp. Of America also refused payment saying that the patient was not enrolled in the new plan. The case, originally filed in State court and then removed to Federal court, has been sent back to the State court for further proceedings.     

4th Circuit: asymptomatic HIV is not a disability under ADA

The 4th U.S. Circuit Court of Appeals ruled that William Runnebaum, who is HIV-positive, cannot continue with his lawsuit alleging that NationsBank of Maryland fired him because of his HIV status. The court decided that Runnebaum did not make a case of discrimination against his employer because his work performance was substandard. Additionally, the court ruled that HIV infection in and of itself does not constitute a disability and therefore Runnebaum is not protected by the Americans with Disabilities Act (ADA). The court ruled that Runnebaum failed to prove that his asymptomatic HIV infection was an impairment or that it substantially limits a major life activity. When the ADA was enacted in 1990 it was presumed that anyone with HIV would be protected from discrimination and reports filed by both the House of Representatives and the Senate indicated that legislators felt that HIV infection constituted an impairment. This ruling made by the 4th Circuit seems to discount the legislation's intent. The court rejected Runnebaum's suggestion that the ability to procreate and engage in intimate sexual relations was a limitation of a major life activity. Dissenters argued that the opinion is not based on sound medical facts because HIV, even if it is asymptomatic, is an impairment. The dissent also contends that Mr. Runnebaum was not given fair and ample opportunity to prove that his HIV infection is disabling. The court was in sharp disagreement relative to Runnebaum's job performance. The court majority said that Runnebaum failed to meet sales goals and engaged in unprofessional behavior. The dissent countered that Runnebaum's sales record exceeded that of another employee who was not terminated.     

Washington upholds HIV exposure law as constitutional

A Washington State appeals court has rejected a constitutional challenge to a law that makes the intentional spreading of HIV to sex partners a crime. The court rejected the notion that the criminal exposure law violated the equal protection clause of the U.S. and State constitutions because it singled out those infected with HIV for unequal treatment. The court saw the law applied specific conduct to all, infected and non-infected alike, not specific groups of people. A second argument that the defendants were denied right of procreation was rejected because those rights are not protected if the defendant intended to inflict bodily injury. In this case, the defendant, Randall L. Ferguson, knowing his HIV status, willingly had sex with several women without warning them of his status or using a condom. The court viewed this behavior as acting with intent to inflict harm. An earlier case involving an HIV-specific criminal exposure law is described.     

Court puts onus on doctors to warn patients about HIV status

Associate Justice Miriam A. Vogel, in a California appeals court, stated that doctors have an obligation to tell infected patients that they have a contagious disease so that patients and people around them can avoid spreading the illness. A decade ago, physician Eric Fonklesrud of the University of California (UCLA) Medical Center, operated on 12-year-old Jennifer Lawson and did not tell her or her parents that he had discovered that her blood transfusion was contaminated with HIV. Years later, Lawson, unaware she was HIV-positive, had sex with her boyfriend Daniel Reisner, and infected him. Consequently, Reisner filed suit against Fonklesrud and UCLA for damages. Before the suit reached trial, the judge dismissed Reisner's complaint; however, the appeals court concluded otherwise. The appeals court also rejected the defense's argument that the physician's first duty is to his patient, not unidentified third parties. According to the court, California case law obligates the doctor to provide warnings.     

AIDS does not justify reduction in 45-year prison term

The Texas Court of Appeals ruled that a convicted felon's AIDS status does not factor into the determination of the sentence. The court refused to overturn the 45-year sentence of convicted mugger Nicholas Zavala. The court said that the sentence should reflect the gravity of the offense and be equitable with sentences for similar crimes. Zavala was unable to convince the court that his victim was not traumatized by the mugging and beating. He was equally unsuccessful in his request for mercy due to his AIDS status. The Texas Department of Criminal Justice has the means and policies to accommodate patients with HIV/AIDS.     

Recap of Federal court rulings in health-care employment

A recap of major Federal court rulings involving health care workers and HIV in the workplace is provided. The list includes court decisions on surgery, reassignment of duties, transmission risk, and job transfer.     

Microwave cataract and litigation: a case study

This paper gives details of a recent court case conducted in Australia concerning a compensation claim made by a radar technician for subcapsular posterior cataracts allegedly caused by exposure to microwave radiation. A discussion of some relevant material, including the likely invalidation of certain in vivo ocular exposures due to the use of a metallic cannula and the relevance of in vitro exposures of rat lenses, are presented. The key findings of the court are also summarized. The ruling of the court was that it was probable that the level of microwave exposure did not cause, or accelerate the development of, the cataracts or contribute to doing so. Consequently, the claim was dismissed.     

Presenting evidence for the court

The medical doctor is sometimes called upon to serve in the courts as expert witness. The work is challenging and has serious implications for the legal and justice system. The outcome of a case may adversely affect the lives of real people when the evidence is not presented appropriately. However, there is reluctance from doctors to participate in the court process. The health professional may not be trained in the art of being a court witness and while scientifically qualified, may not provide the due diligence in explaining the issues properly to the members of the court. Some of the issues that may affect the outcome of a legal case include late discovery of conflicts of interest, inability to communicate well and stick to scientific facts, the inefficiencies of the legal system, and testifying against a medical colleague. There is merit to recommend that all medical doctors must undergo theoretical and practical training when presented as expert witness in courts. Five cases are presented here as illustrations of doctors involved in court cases.     

Judge's fear of AIDS insufficient reason for tougher sentencing

An appeals court ruled that Walter L. White, convicted of child molestation, cannot receive a harsher sentence based on the trial judge's ungrounded fear that the defendant could transmit HIV to others. The court found no evidence that the defendant had HIV, knew he had the virus, or had been counseled previously about HIV prevention. The appeals court freed White after finding that both the trial judge and the prosecutor committed errors during the trial and sentencing. White was convicted of child molestation after a 14-year-old boy charged that White had displayed a pornographic movie and put his mouth around the boy's penis.     

Court's guidelines on incompetent patients compromise their rights

All patients have the right to request or to forego extraordinary means. Who shall make this decision for incompetent patients? A Massachusetts court, ruling that only a court is competent to decide such requests, contradicts theologians' recommendations. These decisions should be left to the patients' closest relatives with the help of the physician.     

EEOC is making quick work of AIDS job-bias litigation. Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) has been successful in resolving discrimination cases that involve HIV/AIDS. Half of the cases the EEOC has taken to court under the Americans with Disabilities Act (ADA) have been settled out of court. Over 900 claims of disability-based employment discrimination related to HIV/AIDS have been brought to the EEOC since the ADA took effect in 1992. AIDS is the largest single category of disability that has been sent to court directly by the EEOC. By filing suit, the EEOC reminds employers that they cannot fire a worker with a disability or cap an employee's medical benefits to improve corporate profit margin.