Relatives not told about man's AIDS can sue hospital

January 28, 1995|By Dennis O'Brien | Dennis O'Brien,Sun Staff Writer

The Court of Special Appeals ruled yesterday that a family that cared for an AIDS-infected relative may sue the Baltimore hospital that they say knew he was infected but failed to alert them to it.

The family of Herbert Lemon Sr. alleges that Liberty Medical Center knew from tests conducted when he was admitted in July 1991 that he was HIV-positive.

"Upon his discharge from the hospital, Lemon was not only HIV-positive but suffering from AIDS," according to the court's eight-page opinion.

But neither the hospital nor the treating physician, Dr. Donald W. Stewart, told Mr. Lemon or his family, which continued to care for him for nine months after he was discharged July 21, 1991,

according to the court's ruling.

Mr. Lemon, a Vietnam veteran in his 40s, discovered he had acquired immune deficiency syndrome when he was readmitted to another hospital nine months later, said Thomas C. Summers, the lawyer for his 15 sisters, brothers, sons, nieces and nephews who sued Liberty and Dr. Stewart.

For those nine months, Mr. Lemon's family changed his bed sheets and cleaned up his blood and saliva, unaware that he had the virus, Mr. Summers said.

"They trusted the opinion of their doctor, which was that he didn't have AIDS, so they didn't worry about it," he said.

Family members now say they live in fear of contracting the virus because they were kept in the dark about Mr. Lemon's condition. None of the plaintiffs have tested positive for human immunodeficiency virus, Mr. Summers said.

Dr. Stewart and the hospital's lawyer declined to comment.

The family's $5 million negligence suit was dismissed March 18, 1994, by Baltimore Circuit Court Judge Clifton J. Gordy after lawyers for the defendants argued that the hospital and doctor had a duty that extended only to the patient.

But the Court of Special Appeals said that Maryland's appellate courts have yet to decide how health care providers should handle such cases. For public policy reasons, the question should be reconsidered, the court said.

The court ordered the case to be sent back to the Health Claims Arbitration Board, as a first step toward being tried in Baltimore -- Circuit Court.

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