Judge orders injured plaintiff to undergo test for HIV

May 07, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Under a precedent-setting court order, one that is creating a sharp new controversy amid public anxiety over AIDS, a 35-year-old disabled mechanic will enter a Philadelphia hospital next week to undergo a blood test involuntarily.

The test is for human immunodeficiency virus, which causes AIDS. The mechanic's lawyer insists that there is no sound basis for thinking that the man has the virus or is personally at risk of becoming infected, and yet he must undergo the social stigma )) associated with HIV testing.

But the mechanic has a history of taking drugs by injection, placing him in a "high risk" group for HIV infection.

Under the judge's order, the mechanic must either submit to the test, to satisfy the judge that he might live long enough to collect the compensation damages he seeks, or forfeit nearly all of the damageclaims.

Apparently, this will be the first time that any individual involved in an ordinary damages case has had to undergo a court-ordered HIV test, or else pay the price of surrendering most of his case.

The mechanic's lawyer, Philadelphian William L. Myers, Jr., who regularly pursues damage claims for individuals injured by defective products or goods, said yesterday that he is "frightened to death" by the implications of the testing order.

"The danger of this order," says Mr. Myers, "is that it opens the door to routine HIV testing any time a person in a 'high-risk' group for AIDS -- a user of drugs [by injection], someone who is gay, a black person -- is seriously injured" and then goes to court.

Evan Wolfson, a staff attorney for the Lambda Legal Defense Fund, who has been monitoring HIV decisions in court, said orders like this one "are inappropriate" unless there is a "very, very solid" medical reason to justify them, and some indication that the particular individual is threatened with the disease.

U.S. District Judge James McGirr Kelly of Philadelphia issued the order last week, and Mr. Myers said his client has no practical choice but to obey it rather than appeal.

The unprecedented order appears to pose a significant new legal problem specifically for anyone who brings a lawsuit and has a personal lifestyle that theoretically puts him or her at risk of catching acquired immune deficiency syndrome.

A single, scrawled sentence on a hospital emergency-room report appears to be the basic medical evidence that led to Judge Kelly's order.

The mechanic is an Upper Darby, Pa., man who has been almost completely off work for three years because of injuries he suffered when a truck tire rim that he was mounting exploded in his face. He cannot afford to fight Judge Kelly's order in an appeal, according to his lawyer. So the blood test will occur late next week, making legal history.

The man's name is not being used in this story, at his request, based on a fear of his two children's reaction if they learn that he has to be tested for HIV virus.

Mr. Myers personally wanted to take the blood testing controversy to a higher court "to fight for the principle." But, he said, as a practical matter, "we can't delay his day in court any longer." After the test is over, the mechanic's lawsuit may be able to go to trial next month or in July. An appeal might take two years, Mr. Myers said.

He was flown by an emergency helicopter to a hospital, where a few days later, he had an HIV test, at the suggestion of a doctor. It came out negative: no indication of the virus.

Out of the hospital, he sued Goodyear, claiming that it knew multi-piece tire rims had a history of blowing up, and that it knew how to make single-unit rims for truck tires. He also sued CSX, the operator of the unloading terminal, and the Vermont Railway.

Goodyear and the other two companies deny any wrongdoing. It was a Goodyear defense lawyer, Morton F. Daller of Philadelphia, who adopted the legal strategy that ultimately led to Judge Kelly's testing order. Mr. Daller was out of town and unavailable for comment yesterday, his office said.

That strategy grew out of a return visit to the hospital by the mechanic in late 1989, for a problem with his leg. While in the emergency room, he was asked, according to his lawyer, if he had ever been tested for HIV. He said yes, referring to the summertime test while he was hospitalized.

The doctor or nurse taking the medical history wrote a single sentence about his reply: "Patient says HIV plus."

Mr. Daller demanded, and got, all of the mechanic's hospital records -- including the report of the negative HIV test soon after the accident, and the emergency room report with the "HIV plus" notation.

Mr. Daller then decided to ask that the mechanic be ordered to take a new HIV test, after discovering that he had been an intravenous drug user. The aim: to provide a basis for holding down damages for future medical expenses and loss of earnings, if the new test showed that the mechanic now was infected with the virus -- a potential threat to his life span.

Mr. Myers argued that there was no reliable evidence that his client had any medical problem related to HIV, and that the only evidence was that he was in a "high-risk" group, proving nothing clearly about his present or future health. The emergency room report, the lawyer insists, is simply wrong.

But in his brief order for the test, Judge Kelly said there is a "genuine controversy" over the mechanic's HIV status and the ++ defendants ""have shown good cause for the testing."

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