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Patient wins case following disclosure of HIV status

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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.
 

eggeson Indianapolis solo attorney Neal F. Eggeson represented a client whose HIV status was included in public documents. A jury awarded his client $1.25 million. (IL Photo/ Perry Reichanadter)

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.•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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