LEGAL ASPECTS OF SEXUALLY TRANSMITTED DISEASES
Stanley M. Bierman MD, F.A.C.P. (C1994)

The basic legal principles are clear and simple in matters relating to sexually transmitted diseases (STD): It is the legal duty of a person with an STD to warn others and to take appropriate measures to prevent infecting their partners. Failure to do so makes a person guilty of a tort and allows plaintiffs who have been infected to be compensated for injuries sustained. A tort is a wrongful act, injury or damage for which civil action can be brought. A plaintiff who is wrongfully infected with an STD can sue for negligence or for an intentional tort, which includes battery and fraud.

INTENTIONAL TORT: a conscious desire and deliberate attempt to inflict injury another individual

Intentional transmission of disease
Battery
Intentional infliction emotional stress
Fraud (willful concealment)
Misrepresentation

NEGLIGENCE: behavior that falls below legal standards or lack of care that a reasonable person would expect to be exercised.

The defendant knew or should have known that he or she had an STD
The defendant acted recklessly and did not take reasonable precaution to avoid infecting the plaintiff
The defendant is liable for battery, fraud or intentional infliction of emotional distress

FOUR ELEMENTS NECESSARY FOR ACTION IN NEGLIGENCE

A duty of care on the part of the defendant
A breach of that duty
Causation
Actual loss or damage

NEGLIGENT CONDUCT INCLUDES:

Careless exposure to disease
Careless failure to detect STD by self-examination

Careless failure to discover an outbreak
Careless failure to inform a partner
Careless failure to prevent transmission (condom)
Any combination of the above

CAUSATION: for intentional tort or negligence, plaintiff must show causation..a particular cause, without which the injury would not have been sustained

Can the specific source of infection be traced to the defendant?
What facts can be demonstrated to prove the defendant alone is liable?
BATTERY: Defendant knows he has a contagious STD and knows the probability of transmission is great. Sexual activity resulting in infection can constitute the intentional tort of battery.

Intent: the deliberate intent to cause or transfer disease

Contact: unconsented, unprivileged actual touching
Offensive contact: touching that offends a reasonable sense of personal dignity

DEFENSE AGAINST BATTERY: Defendant lacked knowledge of STD and consent for touching was allowed by plaintiff. However, consent to sexual relations vitiated by misrepresentation of contagious condition

FRAUDULENT MISREPRESENTATION

A false representation by the defendant
Knowledge or belief by the defendant that the representation is false
Intention to induce the plaintiff to rely on misrepresentation
Justifiable reliance by plaintiff on the promise
Damage to the plaintiff resulting from this reliance

DEFENSE AGAINST FRAUDULENT CONCEALMENT

Assumption of risk
No knowledge by defendant of infectivity

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Outrageous conduct resulting in physical harm and emotional harm
Exceeds the bounds tolerated by society

LAWYER'S LEGAL CHECKLIST

History of relationship with defendant
Medical history of plaintiff and defendant
Sexual history of plaintiff and defendant
Actual injury:
Date, time, place
Medical evidence
Mental and physical condition partners
Use condoms or spermacides
Plaintiff's effort to question/examine defendant
Defendant's reputation in community
Defendant's financial status
Employment
Homeowner's insurance
Other assets
Plaintiff motive for legal action
Revenge
Compensation
Plaintiff's willingness to submit to scrutiny of private life
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