Technician’s Case Against Patient With AIDS Opens

A medical technician who sued a woman who hid the fact that she had AIDS before surgery was “intentionally subjected to the risk of exposure,” her attorney claimed Friday.

Diane Boulais was cut by a scalpel during a procedure performed on Jan Lustig, a psychologist and AIDS counselor, in 1991, attorney Rex Beaber said in his opening statement in Los Angeles Superior Court.

In what attorneys say may be the first trial of its kind of a health care worker suing a patient for lack of AIDS disclosure, Boulais, 40, is suing Lustig, 46, for fraud, deceit, negligent and intentional infliction of emotional distress when she failed to tell personnel at the Breast Center in Van Nuys of her condition. Had Boulais known, she could have taken extra precautions, Beaber said.

The lawsuit represents the flip side of recent efforts to force disclosure of HIV-positive medical professionals.

“The significance of this case is not just about AIDS,” Beaber said outside of court. “It goes to the issue whether health care workers have a right to know when they are at special risk.”

But Lustig’s attorneys say Boulais’ scalpel cut was caused by the center’s own negligence in not following 6-year-old federal guidelines issued to guard against transmitting infections, including precautions such as wearing gloves in the presence of blood.

“This is the first case we’re aware of where a patient has been sued by a health care worker for an injury caused by the doctor who employs her,” said Evan Wolfson, an attorney with the Lambda Legal Defense and Education Fund. The public interest law firm, which specializes in sexual orientation cases, is co-defending Lustig.

Boulais has not contracted HIV, according to several tests, the most recent this past fall. “Ms. Boulais suffered no harm and had not been infected,” said Richard DeNatale, Lustig’s co-counsel in his opening statement. “Ms. Boulais should be able to get on with her life.”

Boulais was working as a surgical technician at the center when Lustig, who had been diagnosed as HIV-positive and suffering from AIDS in 1987, came first for a mammogram and then for breast reduction surgery.

In April, 1991, she had surgery “to alter the character of her nipples so they would be more attractive,” Beaber said in court. Three months later, in a post-operative checkup, surgeon Neal Handel used a scalpel to remove an embedded suture. Boulais, who was not wearing gloves, held Lustig’s skin tight to make the doctor’s job easier, the attorney said, but when Handel removed the knife, he cut Boulais’ finger, delivering “a deep penetrating wound.”

Six years earlier, Boulais had undergone the trauma of possible HIV exposure when she was cut through gloves by surgical instruments used on an HIV-infected patient. While years of testing showed Boulais had not been infected by that cut, the technician specifically went to work at the Breast Center “to alter the level of risk in her life,” Beaber said. “She believed people with AIDS would not elect to have cosmetic surgery.”

Lustig is retired from her Westside psychotherapy practice and now lives in Washington state. Boulais is not currently working, Beaber said, because of “the emotional stress associated with this episode.”

Lustig deliberately hid her condition, DeNatale told the court, but wanted to be sure the doctors would treat her. The psychologist was not only undergoing surgery for cosmetic enhancement of her breasts, he said, but also out of “fear of breast cancer.”

“She feared she would not receive the surgery, which was recommended by her doctors, if she revealed her illness,” he said.