Legal Eagle Eye Newsletter for the Nursing Profession (6)3 Mar 98

 

Quick Summary: The negative HIV test result reported to the patient in November, 1992 was actually someone else’s. The patient did not learn she was HIV positive until December, 1995.

If this is true, it is ordinary negligence, not medical malpractice. The time period for the statute of limitations would not begin running when the mix-up happened, but much later when the patient discovered it.  NEW YORK SUPREME COURT, 1997.

 

   The patient had a routine blood draw as part of a prenatal work-up in October, 1992 and was told a month later she was HIV negative. In December, 1995 when her next child was tested at one year of age she learned the child was HIV positive. She also learned at that time that her child born in 1990 was also HIV positive.

   She got re-tested herself in December, 1995 and learned then for the first time she was HIV positive. She sued the hospital.

   The hospital filed a pre-trial motion to dismiss. The New York Supreme Court ruled the legal premise of the suit was valid and that it should go to trial to see if the patient’s allegations could be proven.

   If a patient is given another’s HIV test results by mistake, the patient would have the right to sue the hospital, the court said.

   It would be a case of ordinary negligence, not medical malpractice, this court ruled. This technical legal distinction has the effect of significantly lengthening the statute of limitations. Playford vs. Phelps Memorial Hospital Center, 665 N.Y.S. 2d 1017 (Sup., 1997).