STI-related lawsuits in the news
After being diagnosed with a sexually transmitted infection, people find different ways to cope. Most turn to a healthcare professional or a counselor for information. Many look to friends and loved ones for support. Some, though, seek redress in the courtroom.
Lawsuits involving sexually transmitted infections (STIs), including herpes, are nothing new. Cases that make the news often involve celebrities or enormous sums of money (or both). In recent months, some that have garnered media attention include a $25 million lawsuit filed by author Stephanie Lerner against her husband over her HPV infection, and another filed by Manhattan attorney Frederick Tanne against his wife and her father, alleging his wife infected him with herpes and her father, a physician, concealed her infection. One of the most eye-opening lawsuits of late, however, was a case settled in Iowa, where a woman was awarded a $1.5 million judgment against a man she claimed infected her with HPV.
While that case raises a number of questions on its own, it also raises the profile of such lawsuits in the public eye—not necessarily for the better. Certainly some lawsuits do represent an attempt to recover the very real cost of medical care and treatment. Nevertheless, plaintiffs may run the risk of further stigmatizing the subject of STIs and adding to the misperceptions that already exist among the general public. While the American Social Health Association has taken the position that STI lawsuits, on the whole, will not improve public health outcomes, we understand the importance of being informed on the legal issues involved.
One person well versed in these issues is attorney Susan R. Greene, who brought the first successful lawsuit in Maryland (B.N. vs K.K.) for knowingly exposing a partner to a sexually transmitted infection—in this case genital herpes. Since that time, Ms. Greene has handled a number of cases involving STI transmission. She estimates that she receives about 10 inquiries a day about STI-related cases. Of these, she accepts perhaps one case every two to three weeks, the bulk of which are settled out of court.
One reason so few cases go beyond inquiry is the difficulty in establishing the facts of transmission. Identifying a source partner in cases involving common STIs like genital herpes and HPV, particular when a plaintiff has had more than one sexual partner, can be difficult, requiring both laboratory results and supportive medical documentation. Ms. Greene acknowledges that issues of timing are crucial, and looks for solid diagnostic evidence, such as a positive culture and negative blood test in the case of herpes, that will support the case. Additionally, she looks for evidence that the transmitting partner knowingly misrepresented his or her sexual history. Most cases, however, don’t offer irrefutable proof of transmission, and Ms. Greene has to counsel many clients that a suit isn’t in their best interest. As she states, “The worst thing I can do is take their case, hold them up to public scrutiny, and have them be victimized again.”
Indeed, Ms. Greene advises her clients involved in STI-related lawsuits to “do a lot of soul searching before pursuing a case.” Not only is there the burden of proof to contend with, there is the burden of having your private life become a public matter. Yet while acknowledging the stigma that often accompanies the subject of STIs, Ms. Greene makes a point to remind clients that a diagnosis “just makes you a person that came into contact with a virus that is highly prevalent,” nothing more. And while she is a strong advocate for her clients, she recognizes that a lawsuit is not the best course of action for all. Discussing one potential client who ultimately decided against pursuing litigation that she thought would keep her mired in the past instead of moving forward with her life, Ms. Greene commented, “She gets it.”
Noted STI prevention expert and ASHA Board member H. Hunter Handsfield, MD has served as a consultant or expert witness in a number of criminal and civil cases about allegations of STI transmission in the past 30 years. “I agree to the letter with Ms. Greene”, he said. “With rare exception, preventing STI transmission is a shared responsibility of both persons in a sexual partnership. Even when transmission seems to be one partner’s fault, proving when transmission actually occurred can be very difficult. And it’s usually easy for the other side to find a qualified expert to disagree and plant doubt in the mind of a judge or jury.”
“Certainly any person known to have an active STI has a duty to warn his partner”, Handsfield continued. “But that ethical obligation may not translate to a legal one.” He gives the examples of genital herpes and HPV infection. “Does an infected person who is taking effective steps to prevent herpes transmission, such as consistent condom use plus antiviral therapy, have the same duty to warn as someone not using those precautions? Is the obligation the same for genital HSV-1, which unlike HSV-2 seems to be rarely if ever transmitted by genital intercourse? Or for HPV, long after the pap smear has turned to normal or the warts are gone, but biological cure cannot be proved?”
While some do choose to pursue litigation in cases of STI transmission, it is perhaps not a true “choice” that most would like to be in the position to make. One positive choice you can make before becoming sexually active with a new partner—the choice to have an open and honest discussion about sexual heath, STIs, and protecting one another.