City Desk

Man Can Sue for HIV Scare

A man who said he spent five years thinking he was HIV positive after he was misdiagnosed with the virus can sue a District clinic, the D.C. Court of Appeals ruled last week.

Previously, Terry Hedgepeth's negligence suit was tossed out because it didn't meet a "zone of physical danger" standard.

Hedgepeth—whose riveting story we told last summer—says he was given his erroneous diagnosis when he was tested at Whitman Walker Health. As a result, during the years that followed, he engaged in risky behavior by having sex with HIV positive women and doing drugs, he says. Hedgepeth also says he was in and out of mental hospitals because of the stress he went through in connection to his HIV status.

When he was retested at another clinic and learned he'd been fine the whole time, he filed a $20 million lawsuit in D.C. Superior Court naming Whitman-Walker and the doctor who'd administered his test, but the suit was derailed. As we previously reported:

Judge Robert E. Morin ruled, and a three-judge Court of Appeals panel also found, that Hedgepeth can’t sue Whitman-Walker, because he wasn’t physically harmed. The ruling hinged on a 1990 decision that patients can only sue for malpractice if they’re in a “zone of danger.” If Hedgepeth had taken HIV medication, the courts said, he could have sued—because then he could have proven harm.

The en banc appeals court, however, has decided that in special cases like Hedgepeth's, the "zone of danger" rule isn't the final word. "Because care for the body and the emotions are so interlinked, and patients often are dependent on their physicians’ exercise of due care, they therefore are susceptible to suffer emotionally as well as physically as a result of their physicians' negligence," the court opinion reads.

A spokesperson for Whitman-Walker hasn't returned a call requesting comment yet. Hedgepeth's lawyer, Jonathan Dailey, calls the ruling a "tremendous victory." Hedgepeth, who has grown spiritual over the years, says he knew he'd prevail all along: "I had no doubts. I had great faith."

Photo by Darrow Montgomery

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  • joan

    Great news! I hope he puts Whitman Walker out of business

  • dcav8r

    So, because he was mis-diagnosed, that gave him permission to go and be stupid? I hope this gets tossed. He shouldn't get a dime. Give him 5 bucks for the cab ride. This guy went and slept with HIV+ women and did drugs--- So, rather than try and live a healthy life, he tried his best to not be healthy.

  • matt

    Put Whitman Walker out of business? You dope, Whitman Walker is a non-profit clinic that runs on donations and has been walking a financial tightrope for years. Most of the people there are either volunteers or are paid no more than a pittance of a salary. This of course is due to the stigma attached to HIV/AIDS, so there are virtually no dedicated for-profit hospitals in the US that specialize in HIV/AIDS.

    There is enough information out there that any person with even half of a brain should know enough that when they are given a diagnosis as dire as HIV that they should always seek a second opinion - immediately. Most likely, he only believed the results of the rapid test that he was given and did not have a Western Blot confirmation done until much later when he found out that was actually not HIV-positive.

  • joan

    I think matt is nostalgic for the Whitman Walker of about 20 years ago

  • matt

    Can you elaborate "joan"?

  • Alyssa

    I hope this case gets thrown out as it is dangerous for community clinics around the country. It would be a horrible precedent to have established.

    This man is clearly negligent. False positives occur occassionally for a number of reasons, a lot of which are beyond the control of the person doing the initial screening test. For this reason, the result is confirmed and the client is referred to care (to have a viral load and T-cell count done to learn more about their infection and its progression). Since this man clearly ignored both of the next steps which would have caught the false positive, his own negligence led to irresponsible behavior.

    And honestly, I would hope if people receive a positive result their first reaction would be to take precautions like using condoms and not sharing needles to avoid transmitting it to others.

    And the only reason they are considering such a case is because such stigma remains with HIV. HIV is no longer the life threatening illness it used to be. Receiving a positive test result is no longer a death threat. Yes, it is difficult news, but I know so many individuals who are HIV positive (and may or may not be receiving treatment, support, or care depending on their individual situations) and are leading more fufilling and happy lives than those who are not. It is this mans own issues that led him to neglect work and drowned in depression and self pity.

    A community health clinic and HIV test counselors around the country should not suffer because of this irresponsible individual.

  • Marie

    I feel he should get every dime because people don't understand the mental state that people go through when they are told. I myself had to tell people that they are positive and watch people turn white in the face. How would you feel if a doctor told you that you had cancer and there is no cure? It is a 50/50 chance to want to live or die!! Get a grip and I am speaking to anyone who says that he shouldn't get anything. Put the shoe on your foot and see how you will react!

  • glen

    I don't think he should get anything either. Okay, I think that the hospital/medical staff may have been negligent in misdiagnosing this patient, but false positives do happen. I myself was told they check THREE times before they notified me that I was positive and yeah it does blow your mind especially when you didn't think you were.

    But, the problem I have with this patient, is that, according to his own admission he had risky sex with HIV+ women and used drugs - after the diagnosis- which he claims was the result of his emotional stress from the HIV diagnosis.

    Somehow I do not think this man was emotionally stable to begin with if you can so easily become self destructive when you hear bad news. It would be like destroying your house because someone said you had termites, only to find that later there were no termites, and now you want to sue them because your house is a mess. I mean, the first thing you should do when you find out you have HIV is to seek treatment. Had he done that, he would have been retested to get a baseline CD4 and viral load count and found out that he was negative. If he had done that he would have only thought he was positive for about 6 months, not 5 years or whatever it was.

    I think this lawsuit should be tossed.

  • Rob M.

    Ok -- I feel for Terry Hedgepeth, BUT...I agree with Glen....the first thing I did when I got diagnosed 20 years ago was NOT to live my life differently out of despair, but GET A SECOND OPINION, or at the very least, confirm the results with comprehensive confirmation. Wonder if he's ever heard of that. There are many ways he could have gone about dealing with the news, but the ways described here seem hardly worthy of a large payout. He should be thankful he's still negative if, in fact, he is. I'm still positive, but I'm not mad at anyone over it. It's called 'living'.

  • Nick B

    I feel bad for him, but those were his own actions that he chose to do after he got the diagnosis. However, the tests are often only 99.9% effective meaning that 1 in 1000 individuals will test positive when they're not. If he would have sought out medical care they would have known from viral loads, CD4 counts, and another more definitive test for HIV antibodies that he was not positive. As a prevention researcher, I feel sorry that he experienced that stress, but he shouldn't sue an organization which offers free services (which is so important at a community level) to individuals within the community. But that's my opinion.

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