Legislative update

Recent State legislation on HIV-related issues is summarized. Connecticut enacted a bill imposing penalties when public servants and health care workers are deliberately exposed to body fluids. Louisiana passed a bill mandating HIV testing for each incoming State prison inmate. New York has several bills under consideration related to guardianship, confidentiality of crime victims who are potentially exposed to HIV, and disability benefits for firefighters and police officers who contract HIV, tuberculosis, or hepatitis in the line of duty. North Carolina has a new law aimed at serving additional clients in the State=s AIDS drug assistance program. Oregon is working on a bill authorizing HIV testing for all defendants who may have transmitted body fluids to a crime victim.     

Court finds legitimate basis for Georgia's HIV testing law

The Georgia Supreme Court found a State law, allowing crime victims to request that their assailants be tested for HIV if they have been exposed to the assailant's blood or bodily fluids, to be constitutional. In October 1997, a police officer cut his thumb and index finger during a confrontation with Malik Chavis Adams, who had a bloody bandage on his hand. The officer requested that Adams submit to an HIV antibody test. Adams was tested, but argued that the law violated his Fourth Amendment right to be free of unreasonable searches and seizures. The court rejected his argument, stating that the purpose of the test is to control the spread of HIV. Furthermore, the test results cannot be used in criminal proceedings arising from the offense in question.     

North Dakota law allows confinement on HIV suspicion

Governor Schafer of North Dakota signed Senate Bill 2282, imposing stringent measures to help emergency services providers determine the HIV status of people they encounter when responding to crimes and medical crises. Under the new law, people who expose police officers, firefighters, paramedics, or health care providers to body fluid can be confined for up to five days while awaiting HIV testing. AIDS advocates and civil liberty's lawyers have challenged this measure, claiming that it serves no legitimate public health purpose. The new legislation authorizes certain personnel to petition a judge for a blood test of an individual who caused exposure. People who request the test must show probable cause of significant exposure. Data from the Centers for Disease Control and Prevention (CDC) indicates that the probability of a police officer in North Dakota being exposed to HIV is quite low. However, police officers wanted greater reassurance that any body fluids to which they are exposed were not HIV-positive.     

Felony conviction for spitting upheld on technical grounds

The Ohio Supreme Court upheld the felony conviction of an HIV-positive man who spat in the face of a police officer. The prosecution contended that in 1993, Jimmy Bird used saliva as a weapon against a police officer who had Bird in custody on a charge of disorderly conduct. Bird pleaded no contest to one count of felonious assault and was sentenced to a term of 3 to 15 years in prison. On appeal, Bird sought to have his conviction overturned based on the lack of medical evidence that HIV can be transmitted by saliva. A State appeals court ruled against Bird in 1996, and the Supreme Court upheld the ruling.     

Appeal in spitting case

The Ohio Supreme Court heard arguments in a bid to reverse a conviction of an HIV-positive man who spit at a police officer. Jimmy Bird was sentenced to 3 to 15 years for felonious assault because he used a deadly weapon, his saliva, to attempt to kill a police officer. He pleaded no contest to assault, but later appealed, saying no medical evidence showed that HIV was transmitted via saliva. A ruling is pending.     

HIV disclosure deemed necessary for on-the-job TB screening

The 11th U.S. Circuit Court of Appeals ruled that the Miami Beach Police Department did not violate the Americans with Disabilities Act by requiring police officer William Watson to undergo a fitness-for-duty examination and to disclose his HIV status when undergoing a routine tuberculosis screening. The court agreed that the exam was job-related and consistent with business necessity. All officers are required to undergo periodic TB screenings because of possible occupational exposure. The disclosure of one's HIV status is necessary for proper diagnosis and treatment of tuberculosis.     

Jury faults police for forcing defendant to undergo testing

A Federal jury in Philadelphia awarded five thousand dollars to a defendant whose constitutional rights were violated when police forced him to undergo an HIV-antibody test. During an arrest for car theft in Upper Merion Township, PA, the defendant bled on several officers. Police obtained a warrant to test the defendant, Peter Walker, for HIV. The jury was convinced that the policemen lacked probable cause to suspect that the defendant was HIV-positive. A consultant for the defense stated that in the fourteen years since the AIDS epidemic was detected, there has not been one reported case of a police officer becoming infected in the line of duty. The judge was asked to order HIV training for the town's police officers.     

Criminal exposure

Martin Jones was sentenced to 17 years in prison after he pleaded guilty in Knox County (Tennessee) Criminal Court to exposing three women to HIV through sex. One of the women is a 17-year-old who became infected and pregnant. The other two women came forward after learning that Jones was being investigated for rape involving the 17-year-old. Jones could have been sentenced to up to 60 years for nine counts of criminal exposure to HIV and three counts of statutory rape. In 1994, Jones was charged in Michigan with having unprotected sex with HIV; those charges were dropped when the woman involved declined to pursue the case.     

Cops and docs: The challenges for ED physicians balancing the police,state laws,and EMTALA

State laws are awash with discord concerning whether a police officer's request or court order necessarily obligates physicians to perform a body fluid analysis of an arrested, conscious, nonconsenting suspect. Police typically bring arrestees directly to the emergency department (ED), and federal courts have begun to wrestle with the implications of the Emergency Medical Treatment and Labor Act (EMTALA), which requires that anyone presenting to the ED be screened for treatment. Some state laws require health care providers to comply with any police request for lab analysis, while other states offer more leeway to physicians. Recent trends in federal case law interpreting EMTALA suggest that a medical screening exam is not required for patients brought by police specifically for a blood or urine sample unless either the arrestee requests medical care or a prudent observer would believe medical care was indicated. This article answers two questions: What happens when a police officer presents to the ED requesting service on behalf of an arrestee? What does EMTLA require of physicians in response? We survey current state statutes, review recent state and federal case law, describe example policies from various hospitals, and conclude with recommendations for hospital risk managers.     

Illegal HIV test costs municipal police $67,000 in legal bills

A Federal jury in Philadelphia, PA, awarded $3,100 in damages and $67,221 in legal fees and expenses to a suspected car thief who was illegally tested for HIV. The jury ruled that Peter Walker's constitutional rights were violated when police obtained a warrant to determine Walker's HIV status. The jury concluded that the municipal police department lacked probable cause to believe that the suspect was HIV-positive.     

Kentucky court says HIV exposure is covered under endangerment law

The Kentucky Court of Appeals ruled that Awanton endangerment@ applies in cases where HIV-positive defendants have sexual relations with another person. The ruling came in the case of Steven F. Hancock, who had a 2-year sexual relationship with a woman after he was diagnosed with HIV. A grand jury had indicted him for wanton endangerment in the first degree, and he entered a conditional plea of guilty to a lesser degree of wanton endangerment. The trial judge gave him a 120-day suspended sentence and placed him on probation for a year. Hancock had contended that calling HIV exposure wanton endangerment was against public policy, and such a ruling would mean people could be prosecuted for exposing someone to a cold or the flu. The court's ruling is consistent with rulings in other cases related to criminal exposure to HIV.     

HIV/AIDS and the States: a look at laws passed in 1997

A review of developments in HIV policies and HIV legislation at the State level are organized by subject area including criminal exposure, HIV case reporting, injection drug use and harm reduction, occupational exposure, prisons, perinatal testing, testing policies, consent, viatification, and insurance. Florida, New Jersey, and Missouri imposed longer jail terms for HIV-positive people who continue to have sex. Other States are developing legislation to make intentionally infecting another person with HIV a felony, punishable by a prison term. New Mexico became the 28th State to initiate a name-based surveillance system for HIV cases and AIDS. Six States approved laws designed to reduce HIV infection that occurs as a result of needle sharing. Legislators in seven States expanded the range of workers who are able to ascertain the HIV status of people who exposed them to body fluids or blood in the line of duty. Laws that apply to HIV in the prison system were adopted in Washington, Louisiana, Colorado, Rhode Island, Arkansas, California, Tennessee, Maryland, and New York. These laws include testing of inmates and compassionate release for terminally ill patients. Arkansas, Tennessee, and Maryland joined the list of States that set policies for reducing perinatal HIV transmission. Maryland law requires counseling of pregnant women; Tennessee and Arkansas also require universal testing, unless the woman objects. Laws were passed in California and New Jersey to require the screening of donors to milk and semen banks, respectively. Several States approved bills that address end-of-life issues, including viatical settlements. North Dakota, California, Mississippi, and Virginia passed insurance-related laws.     

Medical trainee can sue hospital for HIV exposure

Reversing a trial judge's ruling, the Louisiana Court of Appeals ruled that medical trainee Jason Dustin, who contracted HIV while on the job, could pursue a tort claim. Dustin was a student, not a hospital employee, and therefore was not eligible to receive workers' compensation. As part of a medical support personnel training program at DHCI Home Health Services Inc., Dustin participated in a clinical program at the Earl K. Long Medical Center. While working in the emergency room, Dustin was exposed to the blood of an AIDS patient and soon after the exposure he tested positive for HIV antibodies. Dustin sued the training program administrator and the medical center, alleging that both were negligent because they had not warned him that the patient had AIDS.     

N.Y. approves disability pay for prison guards with HIV

Governor George E. Pataki of New York signed legislation allowing State corrections personnel to apply for accidental disability benefits based on a claim that HIV, tuberculosis, or hepatitis was contracted on the job. This legislation affords civil service corrections personnel to have the same protection afforded to New York corrections officers, firefighters, and police officers. Pataki vetoed a similar measure extending coverage to police officers and firefighters in New York City who are not included under State Retirement and Social Security Law provisions.     

HIV assault

A Denver man will be tried for assault after spitting and spraying mucous on a Denver police officer who arrested him following a domestic dispute. George Howard Stewart was in custody in a police car when the incident occurred. Stewart's wife warned the patrolman of her husband's HIV status, and hospital records confirmed his status two days later. The officer has since undergone post-exposure drug treatment. Stewart will be tried on second-degree assault, a felony.     

Appeals court orders review of alternatives to prison

The Tennessee Court of Criminal Appeals ruled that a man sentenced to four years in prison for exposing his ex-girlfriend to HIV may receive an alternative to incarceration. Chester L. Bennett pleaded guilty to five counts of criminal exposure to HIV for having unprotected sexual encounters with his girlfriend, who did not learn he was HIV-positive until she found his HIV medication. At his hearing Bennett testified that he learned of his infection eight months before the affair, but did not tell the woman because he was in denial and was concerned about being rejected by her. Because of prison overcrowding in the State, Tennessee enacted legislation to allow alternative sentencing to defendants convicted of different classes of felonies. Alternative sentencing can include parole, community corrections, or split confinement.     

Criminal exposure

Patricia Proctor of Cincinnati was sentenced to one year in prison under an Ohio law that makes it a crime for people who know they have HIV to solicit sex. Proctor was arrested after soliciting a police officer and faced a five-year sentence. She pleaded no contest. The law requires prosecutors to establish that the defendant was aware of being HIV positive when they engaged in the sexual activity.     

Washington adopts measure for testing prison inmates

Governor Gary Locke of Washington State signed legislation that attempts to balance the privacy interests of HIV-positive prison inmates with the safety needs of corrections officers. Bill 1605 limits disclosure of HIV-positive test results to healthcare administrators or infection-control coordinators in State and local correctional facilities. The only exception would be in the case of an officer who is in contact with an inmate's body fluids. The law makes HIV testing voluntary for convicted offenders and pretrial detainees, except for prostitution-related crimes and certain other sex offense convictions. Another exception enables a corrections officer who has been substantially exposed to body fluid to seek court-ordered testing of an inmate.     

New Jersey allows lawsuits based on reasonable fear of HIV

The New Jersey Supreme Court ruled that a fear of HIV transmission lawsuit may proceed even though no actual exposure occurred. The court added that the suit may be brought only if the fear is justified by state of the art knowledge about the mechanisms of HIV transmission. Most State supreme courts that have considered this issue will only allow damages if plaintiffs prove that they have actually been exposed to HIV. A minority of States has employed a reasonableness standard allowing plaintiffs to recover emotional distress damages if it can be proven that their fears are legitimate. This decision was based on the case of Karen Williamson, a medical office cleaning woman who pricked her finger on an improperly disposed lancet. Williamson worried for five years that she would become HIV-positive. Her husband was a co-plaintiff who alleged he lost his wife's consortium because the couple refrained from unprotected sexual relations and relinquished plans to conceive a child. Williamson's case was complicated by the fact that her personal physician gave her unsound medical advice regarding HIV antibody testing. This New Jersey decision differs from two recent rulings made by the Illinois Appellate Court. In those cases, the court ruled that plaintiffs cannot be compensated unless there is a substantial, medically verifiable possibility of infection.     

Uninfected inmate can't seek damages for misdiagnosis in jail

A Federal judge has ruled that Henry Lee Bailey, who was misdiagnosed with HIV, has no constitutional claim against the government for damages caused by the mistake. While serving time in Avenal State Prison in California in May 1992, Bailey voluntarily gave a blood sample in order to obtain a marriage license. Without his consent, the prison tested for HIV antibodies, which came back positive. Additional testing at the HIV Unit at San Quentin State Prison verified the results. Bailey was released in December 1992, but fifteen months later returned to San Quentin, where again he was tested for HIV antibodies, which came up negative. He sued, charging that the misdiagnosis led to his involuntary placement in the HIV Unit which caused emotional distress to himself and his family. District Court Judge Charles A. Legge dismissed the lawsuit, stating a prison official cannot be held liable under the Eighth Amendment for medical care in prison unless the official knows of and disregards an excessive risk to the inmate's health or safety. Negligence in blood testing does not meet this standard.