Sloppy Health Care Provider Owes Over $1.1 Million Damages for HIV Confidentiality Breach

A Delaware trial judge has ordered a health care provider to pay more than $1.1 million in damages to a man who convinced a jury that he lost his job because the provider faxed information about his HIV-related treatment to his workplace.  Superior Court Judge Mary Johnston, finding that the “verdicts are ones that a reasonably prudent jury could have reached,” rejected the defendant’s post-trial motion to set aside the verdict or lower the damage award in a decision released on February 1.

In order to protect the confidentiality of the plaintiff, Judge Johnston allowed him to sue anonymously as “John Doe.”  Doe alleged that the defendant, Infectious Disease Associates, P.A., was negligent in transmitting a fax containing “confidential information regarding Plaintiff’s treatment for the HIV virus” to a fax machine in Doe’s workplace.  A co-worker delivered the fax print-out to Doe, who presented the court with circumstantial evidence that “the behavior of his colleagues in his workplace changed after the fax was received,” wrote Johnston.

Shortly after the fax incident, Doe was discharged.  The defendant presented evidence purporting to show that the termination was “unrelated to anything except work performance,” but the jury evidently found more credible the plaintiff’s evidence that “his performance reviews did not justify termination prior to the fax, and that thereafter his employer moved inexorably toward firing him.”  The jury heard conflicting evidence about whether any co-workers actually saw the fax, the defendant arguing that there was no proof that Doe’s confidential information was actually disclosed.  Doe’s evidence on this point rested on the common sense assertion that “his fellow employee must have seen the fax in order to deliver it to Plaintiff.”

In order to rule for Doe, the jury had to conclude that the defendant’s negligence cased Doe’s lost wages, and that his termination was a “reasonably foreseeable consequence” of sending the fax.

Judge Johnston’s opinion does not identify the employer, as one would expect in protecting the anonymity of the plaintiff, and does not mention whether “Doe” has filed an HIV-related discrimination lawsuit against the employer.

Some of the damage award – $86,526.76 – represents lost wages as a result of the termination of Doe’s job.  The jury also awarded $1,050,000 to compensate “Doe” for the emotional distress he suffered.  The defendant presented evidence showing that Doe suffered no physical injury as a result of the fax incident and that he was already suffering from depression and “emotional issues” before this occurred.  “Doe” countered with evidence that his depression increased after the incident.  He presented a witness to corroborate his claim by describing his “emotional and mental state following the fax,” and the plaintiff’s doctor testified that “she prescribed medication as treatment for Plaintiff’s physical responses to disclosure of the information to his employer.”  This evidence was necessary because Delaware courts will not award damages for emotional distress that lacks any physical manifestation.

In ruling on a post-trial motion to reject a jury verdict, the court defers heavily to the jury’s resolution of credibility issues.  Judge Johnston pointed out: “Credibility should be decided by a jury. Disputed facts are the province of the jury.  The jury’s verdicts are supported by both direct and circumstantial evidence.”  Rejecting the defendant’s challenge of the damages as excessive, Judge Johnston responded that they “are not grossly disproportionate to the injuries suffered, and do not shock the Court’s conscience and sense of justice.”

The court’s opinion does not say whether “Doe” has obtained new employment.

Doe’s attorney is John R. Weaver, Jr., of Wilmington.  The size of the damage award may prompt an appeal.

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