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Jordana Mishory
Daily Business Review
October 22, 2007

A person or company that discloses the results of HIV testing in violation of a patient's privacy rights can be sued for damages, the Florida Supreme Court ruled Thursday.

In a 4-3 per curiam decision in Florida Department of Corrections v. Lisa Abril, et vir, the court carved out an exception to the state impact rule. This rule states that "emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact" in order for a plaintiff to recover damages for emotional distress caused by the negligence of another.

But the high court found in this instance that emotional distress is the only type of injury stemming from the release of personal "highly personal, sensitive information." In addition, the court said that violation of a state statute may be used as evidence of negligence.

This decision reinstated Abril's negligence claim against the Department of Corrections after a lab that performs work for the department released confidential information about the results of her HIV test. But several justices advocated the abolition of the impact rule in concurring and dissenting opinions.

In her concurring opinion, Justice Barbara J. Pariente wrote that, "The impact rule as it exists in Florida is no longer a viable mechanism for limiting recoverable damages in cases involving torts."

Justice Raoul G. Cantero III dissented in part stating that "the rule has been rendered useless, hinging recovery on arbitrary factors unrelated to a claim's authenticity." He said this decision created yet another exception to the rule in a long line of exceptions, and that it would be best to "scrap the rule and replace it with a more workable analysis."

Justice Kenneth B. Bell, in a dissenting opinion with Justice Charles T. Wells, said the majority's decision concludes that breaching any statutory duty creates potential tort liability. He chastised the majority for creating a new common law tort without considering legislative intent.

In the underlying case, Abril, a nurse at the Hendry County Correctional Institution, feared she contracted HIV after giving unprotected mouth-to-mouth resuscitation to an inmate who was infected with Hepatitis C and potentially HIV.

After the Department of Corrections' worker's compensation carrier declined to test her for the diseases, Hendry's chief medical officer submitted a blood sample from Abril to a laboratory that provides HIV testing services for inmates under a contract with the state. Although the HIV test results were supposed to be hand-delivered, they were allegedly faxed to an unsecured machine at Hendry's business office and to a fax machine at a Department of Corrections' office. As a result, a number of people learned that Abril's HIV test results came back positive.

Although these test results were later found to be incorrect and Abril was HIV negative, she sued the Department of Corrections, which was vicariously liable for the laboratory's missteps, for mental anguish and emotional distress over the negligence in ensuring the confidentiality and privacy of her test results. The trial court dismissed the case.

But a 2nd District Court of Appeal panel overturned the trial court, finding that to sue for mental anguish and emotional distress caused by breach of duty, the impact rule had to be applicable. It also certified a question of great importance to the Florida Supreme Court, inquiring if the impact rule was applicable in this case.

The high court's majority upheld the findings of the 2nd DCA. A dissenting opinion by Wells said that he did not understand how the court could rule that the impact doctrine didn't bar Abril's case, but did bar recovery in a case where a person was misdiagnosed with HIV.