State Bar of Texas Health Law Section Report (Fall 1996) Court Holds Hospital Has Duty to Warn a Third Party That Partner May Have HIV

In a case that greatly extends the duty of health care professionals to take affirmative action to protect a third party with whom the facility or professional has not had contact, the Corpus Christi Court of Appeals⁽¹⁾recently held that:

Health care professionals who discover some disease or medical condition which their services or products have likely caused to a particular recipient and which may endanger a readily identifiable third party, owe a duty to reasonably warn the third party to the extent that such warning may be given without violating any duty of confidentiality to the recipient of services or products.

The trial court had granted summary judgment to the hospital but the court of appeals reversed and remanded that judgment. In its analysis on rehearing, the court addressed whether a duty exists on the part of a health care provider or supplier of products to notify a third party that he or she may have been exposed to HIV through someone the health care professional suspects of having HIV as a result of the professional's services or products. On motion for rehearing, the court of appeals upheld its original opinion but used a different analytical framework.

This case involved a plaintiff who was engaged to and later married a hemophiliac who received blood products from Santa Rosa Hospital prior to the time that HIV was identified as transmissible through the blood supply and prior to the time that a method was available to test the blood for HIV. The plaintiff, Linda Garcia, married Adalberto Balderas in 1988, and in December 1989, Balderas became ill and was tested for HIV. In 1993, he died of AIDS. The plaintiff sued Santa Rosa Health Care Corporation for not informing her of her ex-husband's probable infection with HIV. Her cause of action was based on negligent failure to notify and intentional infliction of emotional distress.

The hospital moved for summary judgment on the ground that it owed no duty to inform the plaintiff of the deceased's probable exposure to AIDS and that the statute of limitations barred her claims. Among other defenses, the hospital asserted that a disclosure of information to a third party would have constituted a violation of the deceased's right of confidentiality under the Communicable Disease Prevention and Control Act. The court, however, held that: "the Communicable Disease Prevention and Control Act would not bar the present lawsuit for failure to disclose non-confidential information of this nature that may be necessary to protect a third party from exposure to AIDS."

After reviewing the language of the Communicable Disease Prevention and Control Act concerning the disclosure of HIV and AIDS test results, the court held that environmental and situational factors such as these are not covered by the statute and do not carry the same guarantee of confidentiality as formal testing. Thus, the Act would not bar the lawsuit for failure to disclose nonconfidential information that may be necessary to protect a third party from exposure to aids. The court stated "the risk, foreseeability, and likelihood of injury to these persons from the spread of Balderas' infection clearly justify placing some burden on Santa Rosa both to reasonably inform Balderas of his probable infection with AIDS and to reasonably notify, within the bounds of the law, those with whom he may have had intimate contact or otherwise spread the virus." The court further noted "even after Santa Rosa became aware that Balderas and Garcia were planning to marry and that Garcia was at risk of being exposed to the AIDS virus, it made no effort to notify her directly, or indirectly by notifying Balderas, of his probable infection with AIDS." Accordingly, the court extended the duty of health care professionals to include warning third parties who may have been exposed to HIV.

This extension of liability is particularly unusual since the evidence indicated that the hospital had made several good faith attempts to notify Balderas of his possible exposure to AIDS. Balderas claimed that he never received the letters sent to him by the hospital. He never made his appointments for annual physicals because of "job conflicts."

Statute of Limitations

In further support of the plaintiff's decision, the court held that the duty to warn cause of action is not governed by the medical malpractice statute of limitations in Article 4590(i) Section 10.01, which requires a health care liability claim to be filed within two years from the occurrence of the tort. Therefore, the lawsuit was not barred by the statute of limitations. Instead, it was governed by the statute of limitations found at Texas Civil Practice and Remedies Code Annotated § 16.003, and therefore the discovery rule applied to the case. "Specifically, negligent transmission of the AIDS virus has been held to be an inherently undiscoverable cause of action subject to the discovery rule."

All health care professionals or facilities who order or perform HIV testing should reevaluate their notification procedures in view of this holding.

Brenda T. Strama, Vinson & Elkins, Houston, Texas .

Footnotes:

1. Exemption Ruling, C.H. Wilkinson Physician Network, 1996 WL 343384 (I.R.S.) (June 19, 1996).

2. Garcia v. Santa Rosa Health Care Corp., No. 13-94-482-CV, 1996 Tex. App. LEXIS 2513 (Tex. App.-- Corpus Christi, June 20, 1996, n.w.h.).