Patient Was Not Obliged to Disclose AIDS, Judge Rules

A Los Angeles judge ruled Monday that a woman was not negligent for failing to disclose before surgery at a Van Nuys clinic that she was infected with the AIDS virus, but would not free her from an order to pay a surgical technician there $102,500 in damages.

Superior Court Judge David Horowitz said Jan Lustig had “no duty” to be truthful about her medical condition and that government policy allows those who are HIV-positive to “maintain the confidentiality of their medical condition.”

However, he also upheld a jury verdict awarding a technician at the Breast Center in Van Nuys $102,500 for fraud and intentional infliction of emotional distress.

Lustig, 46, a clinical psychologist from Vancouver, Wash., was sued by the medical technician, who was pricked with a blood-covered scalpel while caring for Lustig after a biopsy and breast-reduction surgery in 1991.

The technician has tested negative for the AIDS virus but says she lives in fear of contracting the disease.

Lustig had not disclosed before surgery that she had tested positive for the HIV virus, saying she feared the center would refuse to treat her if doctors were aware she carried the virus. The biopsy showed that breast lumps she had were not cancerous.

A jury last February awarded the technician $120,000 in compensatory and punitive damages for fraud and negligent and intentional infliction of emotional distress. Lustig had asked the judge for a new trial or a reduction in the award.