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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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