Can You Keep a Secret?

If it's about John Doe having AIDS, you'd better not talk. You're probably not supposed to know in the first place.

A Miami lawyer who is dying of AIDS has sued a physician and a fellow attorney, saying the two conspired to illegally obtain hospital records, then gossiped about his medical condition to his co-workers and social acquaintances.

The lawyer, who filed suit May 15 under the pseudonymn John Doe, claims that Armando Garcia, a doctor at South Miami Hospital, violated Florida statutes and a state constitutional right to privacy by obtaining his medical records and disclosing his condition to Miami attorney Yadira Zuazo. Garcia is a staff physician at South Miami, but did not act as Doe's doctor.

The lawsuit, which experts believe is the first test of a new Florida law designed to encourage AIDS testing through legally guaranteed "superconfidentiality," also names South Miami Hospital as a defendant. Doe alleges that the 450-bed medical center was negligent in failing to guarantee the confidentiality of medical records and information derived from human immunodeficiency virus (HIV) test results.

After being diagnosed HIV-positive in November 1989, Doe developed full-blown AIDS (acquired immune deficiency syndrome) and was hospitalized several times at South Miami for treatment of related salmonella infections and weight loss. During one such hospital stay last July, Doe says, he received a visit from his friend, Zuazo, who told him she had heard about his hospitalization from Garcia. "Shortly thereafter," the lawsuit states, "[Doe] learned that the information concerning his AIDS diagnosis had been spread throughout his employment and social community by gossip viciously initiated by Zuazo before and after her visit to the hospital."

Doe's lawyers, Peter Ticktin and Caron Speas, say the 32-year-old Doe had gone to great lengths to conceal his medical condition, telling only his mother, his lover, and his immediate physician. When he discovered that his co-workers knew of the diagnosis, Doe says he was able to trace the information back to Zuazo. Ticktin and Speas say they will prove Zuazo could only have obtained the information from Garcia, whom they describe as her long-time friend.

"South Miami Hospital does a wonderful job treating its patients, but treating someone who's afflicted is not the same as treating the epidemic," says Ticktin. "People need to rely on the hospitals to keep their mouths shut. If a person knows they are HIV-positive, they can take measures to help stop the spread of AIDS. If they are afraid to be diagnosed, the spread will continue. South Miami hasn't spent the money to ensure that its records can't be accessed by any doctor or nurse in the hospital who has a curiosity about a patient."

Ticktin, who is seeking "substantial" punitive damages against the three parties named in the lawsuit, says he wants to "pressure every hospital in the United States to institute new and perhaps expensive precautions to make sure that records and computer systems are not accessed and that they are never the cause of disclosure."

Thomas Scott, a former federal court judge who is representing Garcia, calls Doe's allegations outrageous. "In twenty years I have never seen such utter nonsense as this lawsuit," says Scott. "Very serious allegations are being made against a doctor with a sterling reputation, and there is absolutely no evidence to support them. It's unbelievable. I have asked again and again what factual basis there is for this lawsuit. There is none. My client adamantly denies these allegations, and he intends to countersue everyone invoved."

Frederick Hasty III, attorney for South Miami Hospital, would not comment on the lawsuit, and declined to answer questions regarding the private medical center's record-keeping system. He did, however, express concern that the unproven allegations could cause unwarranted public fear or misunderstanding. "If the lawsuit goes forward, I think there is potential for a great deal of harm," Hasty says. "I think there's a lot of misinformation contained in the lawsuit. We believe the allegations are incorrect."

South Miami Hospital has asked Circuit Court Judge Joseph Nadler to dismiss Doe's suit on the grounds that the new state law governing confidentiality of HIV testing does not apply to the case. Nadler is also considering a request by Doe for an injunction barring all court officers, witnesses, jurors, and news reporters from revealing his identity.

The Florida statute passed last July prohibits all but a few types of medical personnel and government officials from knowing the identity of a person who has undergone HIV tests. The list generally excludes all hospital workers except "health care providers consulting between themselves or with health care facilities to determine diagnosis and treatment" of the patient in question. Another Florida law more broadly prohibits the disclosure of a patient's medical records without his consent, except to hospital personnel for use in direct connection with treatment, or for "internal hospital administrative purposes associated with the treatment."

Both laws carry second-degree misdemeanor criminal penalties. In the case of a physician or medical facility found guilty of an infraction, the law calls for state regulatory agencies to consider suspending or revoking the doctor's or hospital's license. Doe's attorneys say they will encourage the Dade State Attorney's Office to investigate and prosecute the case. South Florida legal experts say they are unaware of any previous prosecution or conviction under the confidentiality law.

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