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St. Mary's Law Journal

Tammy R. Wavle

Abstract

Professionals in Texas are increasingly faced with the issues of if and when they must disclose infection of the Human Immunodeficiency Virus (HIV), and if they may be held liable for failing to disclose a known infection. These professionals must deal with conflicting guidance from the courts and legislature. The source of confusion is the conflict between the common-law duty to warn identifiable third parties of the dangers posed to them and the Texas statute governing confidentiality of test results for Acquired Immune Deficiency Syndrome (AIDS). The Communicable Disease Prevention and Control Act (CDPCA) mandates disclosure of positive test results in only a few specific circumstances. In contrast, the common-law exceptions to the statute are clear that some professionals must warn a third party in danger due to an act of a client. The dual expectation of professionals to keep communications confidential and to protect the public health have always created tension. Laws regarding confidentiality of AIDS victims, common law duties to warn, and statutory provisions mandating client confidentiality within each profession have increased the tension by creating a no-win situation. Currently, professionals run a high risk of liability if they disclose a client has tested positive for HIV. On the other hand, professionals also run the risk of liability for failing to disclose a client’s HIV-positive status to a third person at risk of exposure. The lack of guidance for Texas courts resulted from different jurisdictions reaching opposite conclusions on the duty to warn in the AIDS context. Given the deadly nature of the disease, the duty to warn is essential. So far, Texas courts have upheld the duty to warn third persons. Yet, leaving the issue to be resolved by the courts is unacceptable as there is no guarantee all Texas courts will reach the same conclusion.

Publisher

St. Mary's University School of Law

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