NCJ Number
109879
Journal
Law, Medicine and Health Care Volume: 15 Issue: 1-2 Dated: (Summer 1987) Pages: 36-45
Date Published
1987
Length
10 pages
Annotation
This article examines legal precedents, arguments, and possible defenses in cases of legal liability related to the diagnosis and transmission of acquired immune deficiency syndrome (AIDS).
Abstract
Liability for medical malpractice in AIDS-related diagnosis may arise for failures to diagnose, to inform a patient of a diagnosis, to provide proper counseling and treatment when patients test positive for AIDS, and to report AIDS diagnoses to health authorities or at-risk sexual partners. Medical malpractice doctrines provide a basis for recovery in the case of negligent diagnoses. Similarly, negligence provides the most likely basis for a successful suit by someone who has received AIDS-contaminated blood products. In cases of sexual transmission of the AIDS virus, a range of causes of action are available, based on both intentional and negligent conduct. Many practical problems attend tort litigation for the transmission or contracting of AIDS. Substantive elements such as causation are difficult to prove, for example. Defenses for the sexual transmission of AIDS include assumption of risk, contributory negligence, interspousal immunity, the illegality of the sexual activity, and right to privacy. The statute of limitations may present procedural obstacles, and evidentiary problems may preclude recovery. 91 references.