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Doctor tested Brooklyn woman for HIV without her knowledge or consent; Turns out she was HIV positive


Posted on Oct 04, 2012

A 31-year-old woman who identified herself as “Jane Doe” in a lawsuit had gastric-bypass surgery. While she was recovering from the surgery, a nutritionist noticed that Doe had a vitamin B12 deficiency. So, the nutritionist recommended that Doe see a doctor at a local clinic for treatment.

During the summer of 2011, Doe had several visits with the doctor. Despite the doctor’s efforts to correct Doe’s vitamin B12 deficiency, the low levels of B12 did not improve. The doctor also noticed a shortage of white blood cells. The doctor then recommended an HIV test, but Doe declined to take the test. Instead, she wanted to focus on healing from her gastric-bypass surgery.

Doe again came to the doctor’s office on September 9, 2011. There, a physician assistant drew more blood for testing. Doe did not sign a consent form and Doe was not counseled beforehand. Doe assumed that her blood was being tested for vitamin B12 deficiency. After all, Doe saw the doctor for that problem. To her dismay, however, she later discovered that the blood test was used to test for HIV.

On September 22, 2011, Doe came to the office and was told that she was HIV positive. Doe was not prepared to hear the results. In fact, Doe did not even agree to the test.

New York law requires that physicians receive written consent from a patient before administering an HIV test. A physician must also counsel the patient before administering the test by explaining how HIV is contracted and that the test is anonymous. After a doctor tells a patient she is HIV positive, the doctor must give more counseling and must refer her “for emotional support and medical treatment, according to the law.”

Despite the health benefits of testing, Doe’s lawyer asserts that the doctor violated Doe’s right to choose. When the doctor suggested an HIV test to Doe, she declined. Doe’s lawyer says the law protects these rights.

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Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer