An Appeals Court in Florida agreed with a lower court’s ruling that a patient does not have a medical malpractice case against a physician who mentioned her medical condition in front of her minor daughters. The plaintiff was HIV positive and had been admitted to the hospital for a bladder infection. During her hospital stay, the patient’s mother brought her two underage daughters (who were unaware their mother’s HIV-positive status) in for a visit. While the daughters were in the room, the defendant-physician walked in and asked the patient whether she had been taking her HIV medications.

The patient sued the physician for medical malpractice, alleging that his statement caused mental anguish and emotional distress. As the case progressed, the plaintiff filed a motion for a protective order barring her daughters from being deposed as part of the case because, according to the plaintiff, her daughters “do not know that Plaintiff is, in fact, HIV positive.”   

The court held that normally in order to win in a medical malpractice case “a plaintiff must demonstrate that: (1) a doctor owed the plaintiff a duty of care; (2) the doctor breached the duty of care; and (3) the breach proximately caused injuries and damages are owed.” Damages from emotional distress, the court said, generally (with one or two exceptions) flow from a physical injury. One of the exceptions to this rule is when a “laboratory or other health care provider is negligent in failing to keep confidential the results of an HIV test.”  That exception was based on a case where a lab faxed the positive results of an HIV test to a patient’s place of employment where it was seen by other employees.

In this case, however, the court held that since the plaintiff could not show that her daughters had even heard the physician’s question, no actual disclosure took place and therefore the plaintiff could not show damages (one of the criteria necessary to prove liability).