By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles, CA

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 

California Hospital Medical Center

Los Angeles, CA

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: In late 2006, a man was seen at a hospital for multiple conditions, including major depression, joint stiffness, a scattered maculopapular rash, dysarthria, gait difficulties, and neurological deficits (a facial droop). After returning to the hospital seeking treatment for additional ailments, the patient was admitted to the hospital’s ED with flu-like symptoms. He was told that he suffered from an unnamed viral infection, but that he had no risk of HIV.

In 2007, the patient was told by an outside physician that his symptoms were indicative of HIV, and the physician recommended testing. The patient returned to the hospital and signed a form permitting the hospital to test him, but no testing was performed. After returning to the hospital over the next three years for different ailments, the patient was again informed that his symptoms were indicative of HIV. However, the patient informed the physician that he had already been tested and received a negative result. After a retest, it was discovered that the patient did in fact suffer from HIV, prompting him to file suit against four physicians. A jury awarded the patient $18.4 million in damages.

Background: In November 2006, a man was treated at a hospital for multiple ailments including major depression, joint stiffness, a scattered maculopapular rash, dysarthria, gait difficulties, and neurological deficits (a facial droop). He was seen by four different physicians. While undergoing treatment, the patient attended law school and thereafter secured a position working at a probate court as an attorney.

In 2007, the patient was tested for diseases and conditions, including Lyme disease, strep, syphilis, Epstein-Barr virus, Guillain-Barré syndrome, cytomegaly, and parvovirus. Following a battery of tests, the patient was diagnosed with cranial neuropathy of uncertain etiology and Bell’s palsy. In May 2007, he was admitted in the hospital’s ED for flu-like symptoms and was informed he was suffering from a viral illness, given Z-pack antibiotics, and sent home. One of the physicians noted in the medical record that “There is no risk of HIV, but testing will be considered.”

Later that month, an outside physician advised the patient that his symptoms were highly suggestive of HIV and recommended testing. The patient returned to the hospital and signed a consent form to undergo testing. During the next month, another physician saw the patient and informed him that his test results “looked good.”

In June 2007, one of the patient’s physicians noted that the patient’s bilateral facial weakness was improving and that there was no specific explanation for the symptoms or any known etiology. The physician informed the patient that his neurological and lab tests were negative. Based on the consent form executed the month before, the patient believed that HIV tests were also performed and also returned a negative result. No hospital staff member informed him that the test had not been performed, and the physician noted that he did not need to see the patient again.

From 2008 through 2010, the patient saw different physicians and underwent different tests as a result of his ailments. One physician noted the patient’s HIV factors and recommended testing. The patient mentioned that he had been previously tested and had a negative result, but nevertheless consented to retesting — which returned a positive result.

The patient brought a medical malpractice action in January 2013 against the four physicians who were involved in his initial testing. The district court partially limited the patient’s claims as a result of the statute of limitations, which bars claims if too much time has elapsed. The defendants also claimed that the patient assumed the risk and claimed that he refused HIV testing on at least one occasion, and that his symptoms did not warrant HIV testing.

A jury awarded the plaintiff $18.4 million against two of the physicians; the jury further determined that one physician was not negligent and the other was negligent but did not cause injuries.

What this means to you: This case demonstrates how clear communications are critical for hospitals and physicians to correctly inform patients of test results, and the importance of timely diagnosis and treatment.

If the CD4 count in an HIV-positive person’s body drops below 200, the infection has progressed into AIDS. AIDS is characterized by an inability to fight off certain infections and cancers, such as PCP, Kaposi sarcoma, wasting syndrome, memory impairment, and tuberculosis. Most patients who are diagnosed with HIV early and treated properly will not develop AIDS.

When a patient presents with symptoms that suggest HIV, physicians should inquire about the patient’s personal interactions and other relevant background information that enable the physician to better diagnose and determine whether testing for HIV is appropriate.

In this case, the patient exhibited several risk factors for HIV, such as previously working as an EMT and homosexuality. Other risk factors physicians should inquire about for HIV include whether the patient engages in unprotected sex or sexual relations with an HIV-positive individual, uses intravenous drugs, the presence of a sexually transmitted infection, or for males, being uncircumcised.

Since HIV progresses through a series of stages, it is critical to diagnose and treat it as soon as possible in order to minimize harm to the patient. While a complete failure to diagnose is more likely to give rise to injuries and a subsequent medical malpractice action, a delayed diagnosis — combined with the resulting delayed treatment — can cause equal injury.

A patient who receives treatment in the earliest stage of primary infection, also known as acute HIV, may remain at this stage and avoid becoming symptomatic. However, if a physician does not timely identify the patient’s symptoms and order an HIV test, that failure may constitute medical malpractice if a reasonable physician in the same or similar circumstances would have done so. Such a failure may be directly responsible for the patient’s HIV progressing to a more serious stage and cause significant harm.

While the symptoms above can indicate an HIV infection, the only method to verify is by testing for HIV. One method to test for the infection is to test blood or saliva for the HIV antigen. This method can indicate the presence of the virus shortly after infection, unlike testing for HIV antibodies, which can take up to 12 weeks to appear. It is advisable to test for other comorbid infections and complications in addition to directly testing for HIV, such as tuberculosis, hepatitis, toxoplasmosis, other sexually transmitted infections, liver or kidney damage, and urinary tract infection.

One complication that physicians must be conscious and sensitive about is the stigma surrounding HIV and AIDS, which extends to all aspects of the disease and its diagnosis, testing, treatments, and even conversations relating to symptoms, risk factors, and lifestyle choices that increase those risks.

Physicians discussing these sensitive issues with patients should notify patients of the various state and federal laws that are designed to protect the privacy of those being tested for the virus or diagnosed with the virus while requiring notification to those who may have been exposed to the virus by an infected individual. Hospitals and care providers must ensure that their staff are trained and educated concerning these issues in order to fully inform patients.

These laws can be complicated for patients to understand, yet patients look to physicians for guidance. Healthcare providers should be cautious and consult risk management and legal professionals to ensure all procedures are current, especially for responsibly managing HIV and HIV/AIDS patients.

If the patient here had actually received HIV testing in 2007, as he expected, he would have promptly received treatment and his quality of life would have been significantly increased. While there is no cure for HIV, antiretroviral therapy exists, which can block the virus in various ways depending on the class of drug. The classes of these drugs include non-nucleoside reverse transcriptase inhibitors, nucleoside or nucleotide reverse transcriptase inhibitors, protease inhibitors, entry or fusion inhibitors, and integrase inhibitors. It is advisable to combine three drugs from two different classes to avoid the creation of drug-resistant strains of HIV.

In this case, clear communications and timely diagnosis and treatment did not occur. With follow-through and adequate testing procedures, this patient’s injuries and an $18.4 million verdict could likely have been avoided.


Decided on June 18, 2018 in the U.S. District Court for the District of Massachusetts; case number 1:13-cv-10103-RGS.