Patient wins case following disclosure of HIV status

Considering how much information is out there on just about every individual – a simple Google search can prove that
– it’s difficult to say what is or isn’t private anymore.

However, the worth of a man’s privacy was the heart of a case decided by a jury in Monroe Circuit Court July 1 following
a three-day trial. That jury awarded a patient who was HIV-positive $1.25 million of the $1.5 million he asked for following
the public disclosure of his HIV status.
 

It is the first Indiana case to involve the Health Insurance Portability and Accountability Act and Indiana Medical Malpractice
Act regarding whether patient privacy falls under the definition of health care, and whether it is the standard of care for
physicians to protect patient privacy, according to the plaintiff’s attorney Neal F. Eggeson in M.O. v. IMA, Inc.,
No. 53C01-0604-PL-00723. Eggeson is a solo practitioner based in Indianapolis. Greene Circuit Judge Erik Allen presided over
the trial as a special judge.

The story begins in late 2003, when the patient’s health-care provider, IMA Inc. in Bloomington, told M.O. that he
owed $326 for a single visit. M.O. figured it was an insurance glitch – something that wasn’t uncommon. But when
the bill still wasn’t paid, IMA Inc. contacted Koch Law Firm in Bloomington to initiate a collections claim.

IMA Inc. provided the law firm with personal information about the patient, including that he was HIV-positive. The law firm
then included personal information in its court documents, including the patient’s full name, home address, home phone
number, date of birth, Social Security number, amount owed, and that the patient was HIV-positive.

When M.O. found out his private information was in the public record, he had a downward spiral according to his therapists,
Eggeson said. “My client guarded his privacy jealously,” he said, adding he didn’t even meet M.O. face-to-face
until a few years after their initial contact, mostly via phone calls.

After learning his private information was in the public record, M.O. initially hired an attorney other than Eggeson to help
take the case’s private information out of the public record, which ultimately happened about six months after the collections
case was first filed.

But it wasn’t until early 2005 that Eggeson agreed to take on M.O.’s case seeking damages for loss of privacy,
including therapy visits, and mental and emotional anguish and stress. M.O. had also hoped to get enough money to move out
of the relatively small community of Bloomington to a larger city where he could be anonymous.

“Bloomington is an insular community,” Eggeson said. “Word travels fast. Even through the process of the
court proceedings, there was no way of knowing if someone would know him.”

In fact, there was at least one incident where someone happened to recognize M.O. enough to connect him to the case. M.O.
had also told Eggeson that he would back out at any minute if he could no longer remain anonymous. At the jury trial, he sat
next to the attorney all three days, mainly because he knew that even though it was a risk, “he could see the light
at the end of the tunnel,” Eggeson said.

But it wasn’t a typical journey for a legal case, he added. Eggeson initially told his client the case could take two
or three years, but he didn’t anticipate it taking more than five years since their attorney-client relationship started.

Since M.O.’s first call to Eggeson in early spring of 2005, Eggeson knew he would need to look at the issue in a creative
way. He suspected other attorneys had turned down M.O.’s case because there was no way to file a private action under
HIPAA – even though part of HIPAA is meant to protect patient privacy – and that in a case involving whether patient
information is considered health care, the Indiana Court of Appeals had ruled that it was not.

As a professor of advanced legal research and writing at Indiana University School of Law – Indianapolis, Eggeson said
he enjoyed challenges when it came to creative thinking and this case was no exception.

He figured if he could get the doctors on the medical review panel for this case to state that keeping patient information
confidential was the standard of care for physicians in Indiana, he would have a case on those grounds under the Medical Malpractice
Act, which deals with the standard of care.

The medical malpractice case was filed with the Department of Insurance in June 2005, and that process wrapped up in April
2008 – much longer than he expected it would take, Eggeson said.

The medical review panel was unanimous in its finding that IMA Inc. breached the standard of care when it comes to protecting
patient privacy by sharing M.O.’s HIV status with the collections law firm.

Two of the panelists testified at trial, and one of the experts said that “protecting patients’ privacy is part
of what it means to be a doctor in the state of Indiana,” Eggeson said.

Meanwhile, HIV/AIDS advocates in Indiana praised the decision, as privacy is often the number one concern of those living
with HIV/AIDS.

“This is particularly egregious in a health-care setting. If people can’t trust their doctors, it will discourage
a host of people from seeking treatment, or testing, and therefore they will likely spread the disease even more. There’s
a domino effect when you start invading people’s privacy in this manner,” said Sean C. Lemieux, an attorney with
offices in Indianapolis and Bloomington who has represented clients who are HIV-positive in cases regarding their privacy,
mostly in the workplace.

Lemieux said it also was important to realize there is still a stigma toward people who are HIV-positive, “even 30
years into this epidemic,” he said.

He added he had heard of other cases where collection agents had learned of a patient’s HIV status “and used
it to embarrass the person and to cajole them into paying the bill. It appears that some collection agents see this as a weapon
to use,” he added.

Privacy is also important because it can cause problems when someone finds out, according to advocates.

“People living with HIV are still being treated differently if they disclose their status,” said Gina Pope-King,
an Indianapolis-based advocate for people living with HIV/AIDS. “People have lost jobs because of it and families have
been torn apart. Some people wrongly assume that they can catch the disease just by being around a person who has it …
eating off the same silverware, touching the same things. Many people with HIV do not want to worry about this potential reaction
so they prefer to keep their status private.”

Lemieux added that even though there are legal ramifications to firing someone or evicting someone due to their HIV-status,
that doesn’t matter to those with HIV/AIDS who fear either of those things could happen to them.

Bil Browning, publisher of The Bilerico Project based in Indiana, added the issue is of particular interest to the gay and
lesbian community. He reported on the case on his national blog, and said other national gay and lesbian media outlets had
covered the case.

“HIV and AIDS have long been illogically considered a ‘gay disease’ thanks to framing from the religious
right meant to condemn homosexuality as unhealthy and diseased,” Browning said via e-mail, as to why he’s been
following this case.

“The original reasons for privacy concerns that led to confidential testing and diagnosis were because of the moral
judgment mainstream society dumped on an HIV+ person. Coming out in a small community in Indiana is hard enough, but the decision
is a private one. Many LGBT people report not being comfortable talking with their doctors about their sexuality and
any relevant medical concerns that might out them to their health provider. Many other LGBT people from across the state use
the same doctor and health care system for their specialized HIV/AIDS care. The knowledge that IMA is willing to disclose
their patient’s most intimate information for a few hundred dollars is definitely newsworthy for the Indiana LGBT community.”

While defense attorney Edward Liptak of Bloomington told Indiana Lawyer he wouldn’t comment on the case at
this time, he still had time to file an appeal as of deadline for this article.

If he does, Eggeson said he’d be surprised if the Court of Appeals disagreed with the medical panel and the jury, but
added that IMA was also involved in a third-party suit with the law firm that filed the collections notice, which was not
part of the jury trial but might be brought up in an appeal filed by the defense.•