$1.5 million lawsuit filed over AIDS test

March 12, 1994|By Michael James | Michael James,Sun Staff Writer

A lawsuit seeking $1.5 million has been filed on behalf of a Frederick County man who claims he was arrested, jailed and forced to take an AIDS test after health officials targeted him as a potential carrier of the virus that causes the deadly disease.

Attorneys for the man, identified only as John Doe in the lawsuit, claim that Frederick County sheriffs and health officials overstepped their bounds and put the man through public humiliation because of a heightened fear of AIDS.

The man was arrested Aug. 3, 1992, after county officials obtained a search warrant for his blood, claiming he was "actively engaging in sexual activities with other persons in the gay community."

An affidavit, which was signed by a judge, authorizing his arrest, said the man was identified as a potential carrier of acquired immune deficiency syndrome after his companion was diagnosed as being HIV positive two months earlier.

The human immunodeficiency virus (HIV) causes AIDS.

John Doe's sexual partner also advised him that he likely had AIDS and that he should be tested, according to health officials.

The lawsuit contends that county health officials began losing patience with John Doe after they called him twice to come in for an AIDS test. He didn't respond to their requests and they opted to pursue legal action against him, the lawsuit said.

"This was a witch hunt. They chased down our client, arrested him and dragged him to jail," said Mark Martin, managing attorney for the Public Justice Center, which filed the lawsuit. "The fact is the people who are, or may become, HIV positive are entitled to the same constitutional protections as everyone else."

But for Frederick County Sheriff Carl Harbaugh, the issue boils down to preventing the spread of AIDS.

"The only thing I can say is that the health department was concerned about the spread of AIDS by this individual. There is a law that prohibits the intentional spreading of AIDS. They had info that he was HIV positive. But he wasn't coming in to be tested," Sheriff Harbaugh said.

Maryland law does stipulate that it is a crime to knowingly spread fatal diseases. But there is no provision that requires someone to take a blood test to determine if he or she is infected with HIV, the lawsuit said.

The lawsuit, filed in federal court in Baltimore, names as defendants Dr. James E. Bowes and Patricia Groves of the Frederick County Health Department and James Rowe, a nurse with the state AIDS Administration. Also named are Sgt. Ralf R. Berger and Detective Chester Claggett, of the sheriff's office, who arrested John Doe.

Reached last night at home, Mr. Rowe said, "At this time, there are things I'd like to say to set the record straight. There are two sides to this story. But I'm saying nothing as of yet."

The alleged victim was arrested after being pulled over in his car en route to work.

He was handcuffed, searched and taken to the county Detention Center, where he was told, "You're not leaving until you give up your blood," the lawsuit said.

"Believing he had no choice, John Doe signed the consent form . . . and allowed his blood to be drawn and tested for HIV," the lawsuit said.

About three weeks later, John Doe was called by a registered nurse with the county health department, who informed him he had tested HIV-positive, the lawsuit said.

Mr. Martin, one of John Doe's lawyers, said he believed the actions of state and local officials border on setting a dangerous precedent and may have "a chilling effect" on the willingness of people to be tested for AIDS.

"The actions that were taken do nothing to help stop the transmission of HIV," Mr. Martin said. "Health officials have to follow the health laws that are out there . . . they need to be thoughtful and compassionate and not the health police."

Michael Golden, a spokesman for the Maryland Department of )) Health and Mental Hygiene, which oversees the state AIDS Administration, said Maryland officials have never been embroiled in a controversy such as this.

"It's definitely the first time anything like this has come to our attention," Mr. Golden said, declining to comment specifically on the lawsuit.

When asked to explain the state's AIDS testing policies, he said, "We can't force people to be tested against their will. If somebody tests positive for HIV, it's recommended there be some partner notification. But we can't force them."

Sheriff Harbaugh said he believed his agency had done nothing wrong because it followed a court order authorizing John Doe's arrest. He also said he personally didn't object to what was done in the case.

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