HIV Disclosure Was Malpractice

California appeals court rules against doctor who informed patient’s employer of sero-status

In a case in which a doctor disclosed a patient’s HIV status without the proper authorization, resulting in the patient’s unlawful discharge by his employer, a California appeals court upheld a jury verdict for medical malpractice and violation of the state’s medical information statute.

The court also authorized an increase from the damages awarded by the trial court, who had reduced the jury’s monetary award in line with its understanding of California statutory caps on recovery.

At the same time, however, the appeals court ruled in its March 30 decision that the doctor had not violated the patient’s state constitutional right of privacy.

Nicholas Francies was general manager of the Savoy Brasserie, a San Francisco restaurant. In the summer of 1996, he experienced difficulties dealing with his supervisor and other employees and was having trouble completing a budget projection due at the end of October. As a result of pressures in his professional as well as his personal life, according to the opinion by Judge Stuart R. Pollak, he became severely anxious and developed insomnia and a rash.

Francies went to see his doctor, William Kapla, who agreed that he was too anxious to work. The doctor had his assistant fax a note to the restaurant stating that Francies was temporarily disabled and would be out of work for a month. Francies filled out workers’ comp claim forms, and Kapla completed the required paperwork.

“Kapla checked a box indicating Francies was suffering from an additional condition that might impede or delay his recovery, and added the notation that ‘[patient] is managing HIV disease,’” according to the court opinion.

Kapla did not ask Francies for permission to include this information, and did not tell him that he had done so. The workers’ comp forms were submitted on November 11, and copies were faxed to the restaurant. The day after receiving the report, Francies’ supervisor and the restaurant owner decided they would have to discharge Francies because his HIV status would pose a “PR nightmare” for the restaurant. They sent him a notice in the mail on December 19, stating that he had been replaced as general manager and would be considered an “employee on unpaid leave without benefits.”

Francies filed a discrimination action against the restaurant that he settled for $160,000, and he also recovered $43,035 in workers’ compensation benefits.

Francies also filed a lawsuit against Kapla. The jury found that writing about the HIV information on the form without Francies’ consent violated his rights to the tune of $70,000 in economic damages and $425,000 in non-economic damages. The trial judge reduced the damages to $191,998 based on his reading of state law, prompting disagreement from the appeals court and their move to push damages back up. The trial court also awarded $1,000 in attorney’s fees.

Both sides appealed certain aspects of the ruling.

The appeals court focused first on Kapla’s appeal of the malpractice verdict. Malpractice consists of a doctor failing to exercise the professional level of care required, which could include, in this case, “not obtaining written consent for the disclosure of plaintiff’s HIV status.” Judge Pollak found that Francies had presented ample expert testimony to support the conclusion that failing to get permission for including the HIV information on that form was a violation of good medical practice. Even. Kapla’s expert conceded as much. Also, the court found that Francies had not requested that the forms be sent to his employer. Indeed, it appeared from all the testimony that faxing the workers’ compensation papers to the restaurant may have resulted from a clerical mistake in Kapla’s office.

Contrary to the reasoning of Kentucky court in a similar case just a few weeks ago, the California court also rejected Kapla’s argument that by applying for workers’ compensation, Francies had implicitly consented to having his HIV status reported to his employer. Pollak wrote that “Francies’ employer may have been entitled to the information included in the workers’ compensation report that Francies’ recovery might be impeded by other non-work-related health concerns. The disclosure of his HIV status, however, was not necessary to provide his employer with this information.”

Pollak noted that public policy supported this position, since employees should not be deterred from seeking workers’ compensation benefits to which they are entitled by fear that they will be forced to disclose HIV-related information to their employer.

“An employee should not risk disclosure of his HIV status by seeking to recover workers’ compensation benefits unrelated to his HIV disease,” said the court.

The court also found that there was substantial evidence in the record documenting the emotional distress and other losses that Francies suffered as a result of this breach of his privacy.

However, the court of appeal ruled that the trial court was mistaken in finding that Francies had proven his constitutional invasion of privacy claim. Under California law, only an intentional violation of privacy rights will support such a claim. The court found that although Kapla had intentionally written Francies’ HIV status on the form, there was no evidence that he intended to reveal that information to the restaurant. Pollak concluded that Kapla “was unaware that the report had been faxed to Francies’ employer until after the fact. He had no reason to suspect that the report would be faxed to Francies’ employer in the normal course of business.” Although it was negligent for Kapla’s office to fax the form, the appeals court found that the doctor did not intend to make this disclosure, so no constitutional violation occurred.