However, for a patient to be able to maintain a civil lawsuit for damages against a professional or facility which does such a test without the patient’s expressed consent, the patient must be able to demonstrate in court that there has been an intentional violation of the patient’s rights. If the test was carried out due to a misunderstanding or miscommunication as to what tests were being ordered, and there was no intention to test the patient for HIV against the patient’s wishes, no civil liability will be imposed, the court ruled.

   In this case a patient, who had known for three years that he was HIV positive, came to the hospital emergency room with abdominal pain. He stated he was under the care of a physician in an outpatient clinic at the hospital for kidney stones. The ER staff determined his pain was most likely related to the kidney stones, and told him to see his physician in the outpatient clinic the next morning, which he did. His physician scheduled him for lithotripsy to dissolve the stone.

   Before this procedure, the physician wrote an order for a standard CBC and potassium level. A nurse, in transcribing the physician’s order to a lab slip, made a note, at the patient’s suggestion, that the patient was known to be HIV positive, because the patient wanted to alert the lab to be cautious in handling his blood.

  The nurse’s note, however, was interpreted by the lab as an order for an HIV test. The lab tested the sample for HIV, and communicated the positive result to the state department of health. The patient strongly objected, after the fact, when he found out his blood had been tested. The patient then sued for damages in civil court.