November 6, 2009
HIV test error lands medical clinic in court

By ANDREW BERGH
Special to the Journal

For almost five depressing years, Terry Hedgepeth thought he was HIV-positive.

So imagine his elation when he belatedly learned that his condition had been misdiagnosed. Given the recent outcome of his lawsuit against the medical clinic responsible for the error, however, his roller coaster ride isn't quite over.

The Case of the Regrettable False Positive dates back to mid-December of 2000, which is when Hedgepeth, after learning that his girlfriend was being treated for HIV, underwent an HIV test at the Walker Whitman Clinic in Washington, D.C.

The blood sample was analyzed by an outside laboratory, which concluded the test was “non-reactive.” Although that meant Hedgepeth was negative for HIV, the clinic somehow misinterpreted the result and instead noted in the chart that he was HIV-positive. Relying on this erroneous record, one of the clinic's doctors then misinformed Hedgepeth that he was positive for HIV even though he wasn't yet having any symptoms.

Thinking he had just received a death sentence, Hedgepeth went into a severe tailspin. The ensuing depression affected all aspects of his life, including his relationship with his 12-year-old daughter, and it also caused him to lose his job as a restaurant manager.

To make matters worse, Hedgepeth began having suicidal thoughts and was twice committed to psychiatric wards - once in 2001 and a second time in 2002. His despair over the misdiagnosis eventually led to “heavy” use of illegal drugs, caused him to suffer from an eating disorder, and also resulted in isolation from his relatives because of his shame from being HIV-positive. And since he was diagnosed with HIV and had “no reason to live,” Hedgepeth also began having sexual relations with a woman he knew to be HIV-positive.

So when did the District of Columbia resident finally start turning the corner? That would be in mid-2005 when Hedgepeth, for unclear reasons, went to another clinic that ran another test to confirm his HIV status. This time, he was correctly told that he was in fact negative for HIV. (Sorry, no word on how long the celebration lasted.)

In 2007, Hedgepeth sued the medical clinic to recover damages for his emotional distress resulting from the “HIV-positive” fiasco.

But time to digress.

Although it only encompasses 68 square miles, the District of Columbia has had its own court system - and thus its own tort law - for over 200 years.

Before 1990, negligently inflicted emotional distress wasn't compensable in the District of Columbia unless it resulted from a “direct physical impact.” In other words, absent a physical injury, damages for emotional suffering weren't recoverable.

But in 1990, the District of Columbia Court of Appeals, which is equivalent to a state supreme court, relaxed this longstanding rule by adopting a new test. From now on, said the court, a claim for emotional distress can be maintained as long as the plaintiff was in the “zone of physical danger” and “feared for his own safety” due to the defendant's negligence. Notably, the court's decision was “en banc,” which simply means all nine justices participated in the case.

In Hedgepeth's case, there really was no issue about whether the medical clinic had negligently misdiagnosed his HIV status or misinformed him about it. It also was true Hedgepeth had presented compelling evidence that he suffered “severe and verifiable emotional distress” as the result of the defendant's negligence. But the clinic, arguing that Hedgepeth was never within a “zone of physical danger” as required by the Court of Appeals' prior decision in 1990, moved to dismiss his claim.

So far, the clinic is on a roll.

First of all, the motion to dismiss was granted by the trial court, which, as a so-called “inferior” court, rightly concluded that its hands were tied by the 1990 precedent.

And just last month, the dismissal was affirmed by a three-justice division of the Court of Appeals. Since the court's prior holdings can only be overruled “en banc,” said the justices, they were likewise bound by the earlier case.

But Hedgepeth still has a glimmer of hope.

In a concurring opinion, one of the justices questioned whether the “zone of physical danger” requirement must always be met whenever emotional distress damages are sought. Tipping his hand even further, the justice suggested that the “full court” - i.e., all nine justices - revisit the rule to determine whether an exception should exist when the alleged emotional distress, as in Hedgepeth's case, is especially “foreseeable and severe.”

In short, assuming Hedgepeth takes this not-so-subtle hint, he will probably move for reconsideration by the entire Court of Appeals. So unless the concurring justice was only speaking for himself, Hedgepeth might yet have his day in court against the medical clinic.

But win, lose or draw, any distress resulting from the lawsuit will undoubtedly pale in comparison to that suffered by Hedgepeth when he thought he was HIV-positive.