In July this year – shortly prior to the launch of the 20th International AIDS Conference in Melbourne – the Kirby Institute for Infection and Immunity in Society released its Annual HIV Surveillance Report (2014).
By Samuel Pearce, Victoria
This Australian report revealed that approximately 30% of people living with HIV were diagnosed well after the time they should have commenced treatment. In some cases, people were living for a number of years without being aware of their HIV status.
The Kirby Institute’s findings are concerning for two reasons. First, a delay in the diagnosis and treatment of HIV may reduce a patient’s ability to manage the infection and may decrease their life expectancy and quality of life. Second, any delay in the diagnosis of HIV increases the risk of the patient spreading the virus.
There are, of course, a range of complex and intertwining factors that may lead to a delayed diagnosis of HIV. However, in some cases, the courts have recognised that a delay in the diagnosis and treatment of a HIV-positive individual may result from the provision of negligent treatment or advice by that person’s treating medical practitioners.
For instance, in BT (as Administratrix of the Estate of the Late AT) v OEI  NSWSC 1082, a GP was held liable for failing to recognise that his patient may have been exposed to HIV and counsel him about the need for testing. The facts that should have alerted the doctor to this possibility included that the patient had been diagnosed with Hepatitis B and had informed the doctor that this was likely to have been sexually acquired.
One of the issues arising in this case was whether the doctor owed, in addition to the duty owed to his patient, a duty to the patient’s sexual partner. The Court held that the GP did owe a duty to the patient’s partner, as (amongst other things) it was reasonably foreseeable that the patient, if HIV positive, would transmit the virus to his partner.
Even where a person has been appropriately tested for HIV, a doctor may still be found to be negligent if he or she fails to inform the patient of the results of those investigations. This is illustrated by the case of Idameneo (No 123) Pty Ltd v Gross  NSWCA 423.
In this case, a patient who had undergone a HIV test was not advised that this test had returned equivocal results and that she was required to return to her local medical clinic for further investigations. One of the reasons for this failure to notify the patient was that the medical clinic had failed to update her contact details.
When the patient returned to the clinic of her own accord, the GP whom she consulted did not examine the patient’s medical records and incorrectly informed her that her test results were clear. In light of this incorrect information, the patient subsequently engaged in unprotected sexual intercourse with her partner – the plaintiff – following which the plaintiff contracted HIV.
Two of the patient’s GPs admitted liability and the plaintiff’s claim settled before proceeding to trial. These two doctors subsequently brought contribution claims against the medical clinic, which were appealed to the NSW Court of Appeal. The doctors and the medical clinic were found to be jointly liable for negligently causing the p laintiff to contract HIV.
While treatment for HIV has improved significantly over the past few years, HIV infection remains a serious disease. In order to improve outcomes for patients and prevent further spread of the infection, it is essential that patients are diagnosed and treated in a timely fashion.
As the above cases illustrate, the factors preventing early diagnosis and treatment of HIV may include the failure of a patient’s doctor to recognise the need to perform HIV tests, or the failure to communicate the results of such tests to the patient once undertaken. In such circumstances, the doctor may be liable not only for any injury or loss suffered by the patient, but also for any injury caused to the patient’s sexual partners.