Injury from HIV Disclosure
Injury lawyers recognize the damage which can result when privacy rights are violated. However, Florida law has restricted recovery for emotional damages where the injury victim does not suffer a physical injury. Recently, the Florida Supreme Court has ruled that a person or company that discloses the results of HIV testing in violation of a patient's privacy rights can be sued for damages.
In Florida Department of Corrections v. Lisa Abril, the court carved out an exception to Florida’s impact rule. This rule states that "emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact" in order for a plaintiff to recover damages for emotional distress caused by the negligence of another. In finding this exception, the court explained that emotional distress is the only type of injury stemming from the release of "highly personal, sensitive information." In addition, the court said that violation of a state statute may be used as evidence of negligence.
This decision reinstated Abril's negligence claim against the Department of Corrections after a lab that performs work for the department released confidential information about the results of her HIV test. Abril, a nurse at the Hendry County Correctional Institution, feared she contracted HIV after giving unprotected mouth-to-mouth resuscitation to an inmate who was infected with Hepatitis C and potentially HIV.
Hendry's chief medical officer submitted a blood sample from Abril to a laboratory that provides HIV testing services for inmates under a contract with the state. Although the HIV test results were supposed to be hand-delivered, they were allegedly faxed to an unsecured machine at Hendry's business office and to a fax machine at a Department of Corrections' office. As a result, a number of people learned that Abril's HIV test results came back positive.
Although these test results were later found to be incorrect and Abril was HIV negative, she sued the Department of Corrections, which was vicariously liable for the laboratory's missteps, for mental anguish and emotional distress over the negligence in ensuring the confidentiality and privacy of her test results. Certainly, these circumstances can cause real harm and emotional damage. Unfortunately, the court did not go further and eliminate the impact rule altogether. Indeed, several justices likewise argued for the abolition of the impact rule.
