There are a myriad of laws that protect against disclosure of private health information, and rightfully so; your medical condition is a personal matter to be shared only with those with a need to know.  Unfortunately, with regard to HIV status, there remains a stigma in society for those testing positive.  Fortunately, in Florida, thanks to a relatively recent Florida Supreme Court decision which provided needed clarification of the law, a person may sue in court for money damages for a wrongful disclosure of their HIV status.

The private cause of action originates from Florida Statute Section 381.004, which prohibits the disclosure of a patient’s HIV status without their consent. This statute applies to medical providers, employees of health facilities, insurance companies, and any other person or entity that has a “need to know” the results of the testing.  The legislative intent section contained in the statute states that in order to encourage persons to undergo HIV testing, they must have explicit protection against a disclosure of their HIV status without their consent.  The statute states, in pertinent part:

…[T]he identity of any person upon whom a test has been performed and test results are confidential…no person who has obtained or has knowledge of a test result pursuant to this section may disclose or be compelled to disclose…the results of such a test…

Up until 2007, a violation of this statute was handled within the confines of an administrative disciplinary action against a health care provider’s license.  However, the Florida Supreme Court, in the case of Florida Department of Corrections v. Abril, 969 So.2d 201 (Fla. 2007), clarified that a violation of this statute’s confidentiality provisions entitled the person whose privacy was violated to file a civil lawsuit and recover money damages directly from the violator.  The facts in the Abril case involved a nurse who had given unprotected CPR to a prison inmate.  A blood sample was sent to a laboratory for testing, and the positive results were faxed back to the nurse’s employer to an unsecured fax machine.  The results were read by a number of the nurse’s co-workers who had absolutely no business knowing her HIV status.  While the test was later determined to be a “false positive,” the nurse had endured unimaginable pain and suffering caused by the initial disclosure and she sued her employer. The Florida Supreme Court affirmed her right to bring such a lawsuit, holding:

…[A]n entity that negligently and unlawfully violates a patient’s right of confidentiality and privacy in disclosing the results of HIV testing…may be held responsible in a civil negligence action for damages caused to the patient…

In light of these protections, a person should feel confident that the State of Florida has taken definite steps to protect their HIV status against wrongful disclosure.

- Barry K. Baker, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Baker works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at bbaker@boginmunns.com

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