Day on Torts

"What duty  does an HIV-positive individual have to avoid transmitting the virus? What level  of awareness should be required before a court imposes a duty of care on an HIVpositive  individual to avoid transmission of the virus? What responsibility does the victim have to protect himself or herself against possible infection with the virus?"  Those are questions raised in a recent case before the California Supreme Court.

Why did Bridget sue her husband? : "Bridget [the wife] allege[d] that John [her husband] became infected with HIV first, as a result of  engaging in unprotected sex with multiple men before and during their marriage,  and that he then knowingly or negligently transmitted the virus to her. John, who  now has full-blown AIDS, allege[d] in his answer that Bridget infected him and  offers as proof a negative HIV test conducted in connection with his application for life insurance on August 17, 2000, six weeks before Bridget discovered she  was infected with HIV."  Bridget sued John for intentional infliction of emotional distress, negligent infliction of emotional distress,  fraud and negligence.  John not only alleged that Bridget gave him HIV but also alleged that fault should be assessed against her because she did not insist that he wear a condom.

The case went up a discovery issues:  what scope of discovery should be permitted the alleged negative HIV test results six weeks before Bridget’s diagnosis?  And what about the right to privacy? Of course, the scope of discovery is in some ways depend on the viability of the various causes of action and that is where the Court got into substantive tort law.

A website has been launched that will help doctors and the public identify patients and lawyers who filed medical malpractice cases.

Here is a nice summary: "The LitiPages.com Attorney Database allows victims of medical malpractice to screen prospective attorneys and, if they so choose, avoid lawyers who consistently fail to obtain jury verdicts for their clients. The LitiPages.com Patient Database allows physicians to identify individuals who have demonstrated unrealistic expectations of the health care system through their participation in a medical malpractice lawsuit whose merit was not supported by a jury verdict. Finally, LitiPages.com also provides informational resources to patients who have been the victims of legal malpractice. "

Why is the site necessary?  "A physician may feel that a patient who has filed a medical malpractice suit and lost a trial before a jury of their peers harbours unrealistic expectations of their physician and probably of the health care system at large. In the same way, a physician may feel that a patient who files a medical malpractice case only to later withdraw it (or have it dismissed) likewise must have held unrealistic expectations of their physician. The patient who files "shotgun" lawsuits against every doctor listed in their chart when only one (if any) of those doctors was negligent may be perceived by a physician to be out of touch with medical reality. Accordingly, a responsible physician who feels that a patient’s behaviour demonstrates unrealistic medical expectations has both a right (and arguably a responsibility) to refuse elective care to that patient. The attorneys who counseled such patients and filed their cases must subscribe to similarly unrealistic expectations of physicians and of the health care system in general. Appropriately, a physician who feels that an attorney’s behaviour demonstrates unrealistic medical expectations has the right to refuse elective care to such an individual."

The Tennessean reports that the new federal courthouse in Nashville will be named for Senator Frist.

The same Senator Frist who has repeated tried to keep medical malpractice victims from being able to access to the civil justice system.

The same Senator Frist who, after diagnosising Terry Schaivo via videotape, gave the federal courts jurisdiction over a lawsuit brought by her parents (the so-called Palm Sunday Compromise).