Wednesday, July 5, 2006
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S.C. Allows Discovery of Sexual History in HIV Exposure Suit
By TINA BAY, Staff Writer
A wife suing her husband for negligently or knowingly infecting her with HIV is entitled to inquire into his medical records and past sexual conduct, the California Supreme Court ruled Monday in a 4-3 decision.
In doing so, the court adopted a constructive knowledge standard, rejecting the husband’s contention that he has no liability in the absence of proof that he knew he had the virus before his wife became infected.
Bridget B., as she was identified by the court, and her husband John B., who now has full-blown AIDS, tested positive for HIV several months after getting married in July 2000.
Bridget B. said she initially believed John B.’s doctor’s conclusion that she was responsible for bringing the HIV into the marriage. But she sued after, she alleged in her complaint, he admitted to her that he had had sexual relations with men before their marriage her complaint alleged.
From the time they began dating in 1998 to the time they last had sexual relations on their honeymoon in July 2000, she alleged, John B. had represented to her that he was monogamous and had no sexually transmitted diseases in order to convince her to engage in uprotected sex with him. John B. denied infecting his wife, presenting evidence that he was diagnosed as HIV negative on Aug. 17 17, 2000 on a test conducted in connection with a life insurance application, and asserting that if either party infected the other, it was she who infected him.
Broad Discovery Order
As part of pretrial discovery related to her claims of intentional and negligent infliction of emotional distress, fraud and negligence, Bridget B. served medical record subpoenas, as well as various special interrogatories and requests for admission—to which her husband objected in their entirety—concerning his sexual history and his awareness of his HIV infection.
Over his objections, Los Angeles Superior Court Judge Lawrence W. Crispo authorized broad discovery into the husband’s medical records and sexual history over the previous 10 years.
Div. Eight of this district’s Court of Appeal affirmed Crispo’s discovery order but limited it to the extent that Bridget B. sought the identities of her husband’s previous sexual partners and admissions concerning his “lifestyle.”
Acting on the husband’s petition for a writ limiting or striking the remaining special interrogatories, requests for admission, and medical record subpoenas not stricken by the Court of Appeal, the high court affirmed Crispo’s order compelling production of medical records, but reversed his order compelling responses to the special interrogatories and requests for admission to the extent they sought information about John’s sexual history before Feb. 17, 2000 and after July 2000.
The court based its time frame limitation on discovery on the fact that the maximum latency period for HIV was six months prior to John’s August 2000 HIV test, and transmission could not have occurred after the point that the parties stopped having sexual relations in July 2000.
Constructive Knowledge
The court rejected the husband’s arguments that it should block discovery on the grounds of physician-patient privilege and his right of privacy under the state Constitution, and that it should limit discovery to inquiries aimed at uncovering only whether he had actual knowledge that he was infected with HIV.
Writing for the court, Justice Marvin Baxter reasoned that the level of knowledge to trigger a duty for the tort of negligent transmission of HIV was “reason-to-know” rather than actual knowledge. He explained that when an actor is faced with sufficient information to cause a reasonably intelligent person that he is or is probably infected with HIV, the potential for harm through sexual transmission of the virus is reasonably foreseeable.
Limiting tort defendants to those who have actual knowledge they are infected with HIV would have “perverse effects” on the spread of the virus, he added, concluding that Bridget’s discovery request comported with the reason-to-know standard.
Baxter clarified that the majority’s holding supporting a negligent transmission claim based on a reason-to-know standard was narrow, applying only to facts akin to those of the instant case.
“We need not consider the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself, whose relationship does not contemplate sexual exclusivity, who have not represented themselves as disease-free, or who have not insisted on having sex without condoms,” he wrote.
Chief Justice Ronald M. George and Justices Ming W. Chin, and Carol A. Corrigan joined in the opinion.
Justice Joyce L. Kennard concurred in part, dissenting from the time frame limitation the majority placed on discovery.
Justices Carlos R. Moreno and Kathryn M. Werdegar dissented, arguing in separate opinions that the majority had undermined the right to privacy.
The case is John B. v. Superior Court (Bridget B.), 06 S.O.S. 3418.
Copyright 2006, Metropolitan News Company