Reasonable-Patient Standard
This analysis would be valid in states that judge informed consent by the community standard. Unfortunately, it is not sound in states with a reasonable- person standard. Patients are terrified of being exposed to HIV. They believe that any reasonable patient would want to know that their physician was infected, at least if the physician was performing any procedures that could put the patient at any risk of HIV transmission. This is mirrored by huge judgments in the few decisions involving persons who were infected with HIV in medical settings: a jury awarded $12.2 million to a doctor who was infected with HIV as an intern, allegedly because she had not been properly trained to handle sharps.
There have been two cases decided so far on the specific issue of whether a physician should inform the patient of the risk of HIV. [ Faya v. Almaraz, 438, 620 A.2d 327 (1993), and Doe v. Noe, 690 N.E.2d 1012 (Ill. App. 1 Dist. 1997).] Neither patient become infected with HIV. In a traditional informed consent case, this would be a complete defense: the patient must prove that he or she suffered the complication that the physician failed to provide information about. The patients pled that they suffered emotional distress because they were exposed to the risk of HIV transmission and should be allowed to recover for that distress irrespective of whether they were infected. The judges accepted this theory because of the latency between HIV infection and the time when HIV tests can confidently rule out infection is estimated to be about six months. (Although polymerase chain reaction [PCR] testing might shorten this, it will be difficult to prove to the courts that it detects all infections in their earliest stages.) The damages were limited to the interval between the exposure and the final determination that there was no transmission. In one case there was also a claim against the hospital, which the judge allowed to stand.12