Man forced to take test for HIV to get $75,000

October 17, 1994|By Holly Selby | Holly Selby,Sun Staff Writer

State and local officials have agreed to pay $75,000 to a Frederick County man who was arrested and forced to take a test for the virus that causes AIDS, the man's lawyers said.

As part of the settlement being filed today, state public health officials have agreed to issue policy guidelines emphasizing that under Maryland law HIV testing is a voluntary procedure, the lawyers said.

"Our client is very pleased. He has achieved not just a personal victory by his courage and sacrifice, but he has ensured that others won't suffer the trauma that he did," said Nancy E. Paige, one of the attorneys.

Officials at the Maryland Department of Health and Mental Hygiene, which oversees the state AIDS Administration, declined comment on the settlement.

In the suit, the man, identified only as John Doe, contends that Frederick County deputy sheriffs and health officials violated his civil rights and publicly humiliated him by arresting him and forcing him to take a test for the human immunodeficiency virus, which causes acquired immune deficiency syndrome.

In August 1992, county officials obtained a search warrant for John Doe's blood, claiming that he was "actively engaging in sexual activities with other persons in the gay community," the lawsuit says. They handcuffed and arrested him and forced him to be tested for HIV.

According to an affidavit signed by a judge, the man had been identified as a potential HIV carrier because his companion was diagnosed as HIV-positive two months earlier.

Officials at the county heath department had contacted John Doe twice and requested that he come in for an AIDS test. When he did not respond, they decided to take legal action against him, the lawsuit says.

The lawsuit also says that three weeks after his arrest, a county health department nurse contacted John Doe and told him that he was HIV-positive.

Filed last March in U.S. District Court in Baltimore, the lawsuit 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.

"We felt as though this [event] directly opposed effective public policy related to HIV prevention," said Kathryn Shulman, executive director of the Public Justice Center, one of the law firms that represented John Doe.

In settling the case, state and county officials "conceded that their investigation revealed no evidence that our client was knowingly spreading HIV," said Deborah J. Weimer, faculty adviser to the University of Maryland Law School Clinical Program.

Under Maryland law, deliberately spreading a fatal disease is a ,, crime, Ms. Weimer said. But there is no provision requiring that someone take a blood test to determine if he or she is infected with HIV.

"Maryland law says you can't test someone for HIV without their informed consent. The reason is that the adverse consequences -- possible loss of health insurance, loss of employment and the psychological ramifications -- can be so severe," she said.

The policy guidelines issued to local health departments as part of the settlement emphasize that HIV testing requires the informed consent of the individual, who may choose to be tested anonymously, said Ms. Paige, a partner at the law firm of Gordon, Feinblatt, Rothman, Hoffberger and Hollander.

The guidelines also state that if local health officials suspect an individual of deliberately transmitting HIV, they must contact the Office of the Attorney General and the state AIDS Administration before proceeding with any legal action, she said.

"This settlement establishes that it is not necessary to trample the Constitutional rights of people with HIV in order to protect the public, and that public interest is best served by a health policy based on compassion and education, not intimidation and punishment," she said.

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