AIDS misdiagnosis cases on the rise.

Effects of the deadly AIDS virus appear to be spreading to a new segment of the population--people who do not actually have the virus. Claims against laboratories and doctors by patients who say they suffered devastating injuries after erroneously being told they were HIV-positive are on the rise, according to AIDS litigation experts.

At least two cases of "AIDS misdiagnosis," as these claims are known, have resulted in verdicts favoring plaintiffs. In June, a Washington, D.C., jury awarded damages to Raymond Machesney, 57, a former Catholic priest who was diagnosed in 1985 as HIV-positive. (Machesney v. Bruni, No. 93-1477 (D.D.C. June 21, 1995).) For seven years, Machesney underwent debilitating anti-HIV drug treatments, which caused frequent vomiting, fatigue, and sleeplessness.

In 1992, Machesney discovered he never had the virus after he agreed to donate blood in a treatment program for people who were HIV-positive. The doctor in charge of the program noticed that the number of T-cells--white blood cells that fight infection--in Machesney's blood was unusually high. People who are HIV-positive typically have low T-cell counts. Machesney as retested, and this time the results were negative.

Machesney sued the hospital and corporation that operated the lab that had reported the positive test. He also sued the doctor who had treated him for HIV infection for seven years, alleging, among other things, that the doctor should have had Machesney retested. The jury awarded damages against the corporation and the doctor, finding each negligent.

In a similar case last year, a Dade County, Florida, jury awarded damages to a 55-year-old woman who mistakenly believed for two years that she was HIV-positive. (Lowder v. Economic Opportunity Family Health Center, No. 93-16747-CA (Fla., Dade Country Cir. Ct. Sept. 14, 1994).)

In 1980, Vernelle Lowder received a blood transfusion during surgery. Ten years later, she was told that a routine blood test had come back positive for the AIDS virus. For the next two years, Lowder suffered extreme anxiety and depression about the diagnosis, ostracism from people in her community, and nausea and fatigue caused by drug treatments. She stopped kissing and hugging family members, including her three teenage sons, out of fear of spreading the disease.

The circumstances of her discovery that she was HIV-negative are remarkably similar to those in Machesney's case. AIDS counselors in a support group that Lowder had joined began to doubt that she was infected when they noticed that her T-cell counts were consistently high. A second HIV test confirmed the suspicions. Lowder had never had the virus.

She sued the state agency that ran the clinic that had delivered the incorrect test result, the doctor who treated her for HIV infection, and the doctor's clinic. The jury exonerated the doctor's clinic, but found both the agency and the doctor liable.

Dozens of similar cases have been filed in several states, and their numbers are growing, according to Robert Jenner, a Bethesda, Maryland, lawyer who is handling two AIDS misdiagnosis cases. He said the increase is due in part to a rise in the number of people infected.

"There may be a decrease in intravenous AIDS infection, but there's an increase in HIV incidents nationwide," Jenner said. "When there's an increase in the number of people with HIV statistically, you'll get a higher frequency of misdiagnosis cases."

Lowder's attorney, Steve Mitchel, said his Miami firm has been retained in more than 30 cases around the country. He attributes the increase in case filings to the simple passage of time. "We're now at the point where AIDS has been around long enough that people [who have been incorrectly diagnosed as HIV-positive] have gone without symptoms, and they're getting retested," Mitchel said.

Although some AIDS misdiagnosis cases are based on claims of testing errors--that the tests were performed incorrectly--most allege that laboratory technicians or physicians have misread or misreported test results, according to Jenner. One reason given for this is that test analysis involves some subjective interpretation.

Laboratories use two tests to screen for the presence of HIV in blood samples. If a preliminary test, called the ELISA test, is positive, the more sensitive Western Blot test is run. Errors can occur in Western Blot test readings, Mitchel said, because they are subject to a number of variables.

"It's not a test where a computer gives a readout of positive or negative. A laboratory technician reads degrees of intensity of a variety of bands on a litmus paper. Standards for reading the test vary from lab to lab. There's no national standard. Also, it's being read by the human eye. It's a subjective test. The lighting in the laboratory can play into the reading and the result," Mitchel said.

Nevertheless, the Western Blot test is "generally recognized as the gold standard" in the medical community, according to Mitchel.

Ironically, the test's reputed reliability is one reason why a misdiagnosis of HIV infection is not quickly corrected. People who suspect they may be HIV-positive but who test negative are routinely encouraged to be retested in a few months. A person who has been infected will not immediately test positive. But "people who test positive are told that the Western Blot test is the gold standard, that there's virtually no chance the test is wrong. Physicians are encouraging people not to get retested," Mitchel said.

To illustrate this point during the Lowder trial, Mitchel said he grilled one medical expert about the standard for retesting an HIV-positive patient. "I asked the expert, `I want you to assume that you have a nun in a convent. She has never used drugs and never had sex. She has no risk factors for AIDS, and her T-cells are over a thousand. If she tests positive, would you have her retested?' He said, `No.' I then said, `Say you have a newborn baby who has been in a plastic bubble from birth and has never been exposed to germs, and he tests positive. Would you recommend a retest?' And the answer was, `No.'"

Death Sentence

News of a positive test--a death sentence since there is no cure for AIDS--can have devastating psychological and emotional effects on the recipient. AIDS misdiagnosis plaintiffs report nearly universal symptoms of post-traumatic stress disorder (PTSD)--anxiety, depression, despair, and sleeplessness. Relationships with family members and friends become strained and often crumble. Many plaintiffs claim to have attempted suicide at least once.

A positive test result is usually the beginning of years of physical torment as well. Drug treatments to slow the virus's attack on the body's immune system can begin as soon as a diagnosis is made, and they often cause crippling side effects.

Yet plaintiffs' attorneys say that proving damages is one of the most difficult aspects of trying these cases.

Machesney's attorney, David Curtin of Washington, D.C., said, "The biggest problem in a case like this is the insistence by the defendant and insurance companies that the plaintiff ought not be in court complaining because the plaintiff isn't HIV-positive."

Jenner agrees that juries can be swayed by this argument. "The jury says, `What's the big deal? You don't have [AIDS]. Be happy.' You have to explain the whole PTSD concept--that you just can't shut it off. These people drop out of society. They stop going to the dentist, they stop paying taxes, they stop wearing seat belts because they say, `What's the point?' It's hard for them to reintegrate back into society."

Plaintiffs also face uphill battles in states that deny recovery for emotional distress to people who cannot prove their injuries were caused by a "physical impact." To date, two courts have dismissed AIDS misdiagnosis claims based on this rule.

Earlier this year, the Florida Supreme Court declined to lift that state's impact requirement in AIDS misdiagnosis cases out of concern that doing so would subject health care providers to an inordinate amount of litigation. (R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995).

Two years ago, a federal district court in Pennsylvania dismissed an emotional distress claim by a woman who received a false positive HIV test result, but who learned that the test was wrong the next day. "There can be no recovery on a claim that is based on the fear of disease with accompanying physical injury where the injury does not arise out of exposure to the disease itself," the court wrote. Griffin v. American Red Cross, No. 93-CV-5924, 1994 U.S. Dist. LEXIS 16838, at *5 (E.D. Pa. Nov. 28, 1994).)

Even in those states where the impact rule is not followed, plaintiffs may be denied recovery. In August, the Ohio Supreme Court dismissed an AIDS mis-diagnosis claim because it was based on the "plaintiff's fear of a nonexistent peril." (Heiner v. Moretuzzo, 652 N.E.2d 664 (Ohio 1995).

The Alaska Supreme Court, however, recently held that the physical impact rule would not automatically bar recovery to plaintiffs who could prove they suffered "severe" or "serious" mental distress as a result of being misdiagnosed as HIV-positive. (Chizmar v. Mackie, 896 P.2d 196,204 (Alaska 1995).

Despite favorable verdicts, Machesney's and Lowder's battles are not yet over. Post-trial motions are pending in the Machesney case. Lowder is currently on appeal.