Vol 22, 2013 Annals of Health Law 392
DUTY TO WARN OF THE RISK OF HIV/AIDS
case with HIV-infected patients.47 They admit that although an HIV-
infected person poses a risk to others, there is generally a lack of intent to
infect anyone.48 The distinction, they note, is that in one the threat is active
but passive in the other.49 This argument seems persuasive, especially in
terms of finding of culpability based on whether one actively pursued a
course of action or vice versa. Nonetheless, no court in the U.S. has
declined to apply the holding in Tarasoff on the basis of the distinction
sought to be drawn. For instance, in Lemon v Stewart, in which
appellants/family members of an HIV patient who took care of him sued his
physician for failing to warn them of the patient’s HIV seropositive status,
the court showed no concern for this distinction.50 As far as the Court was
concerned, the crucial issue was whether appellants could show that they
were “identifiable potential victims of non-disclosure and were in
significant and foreseeable risk” of infection by the patient.51 The Court
went on to explain the transmission mode of HIV, noting distinctly that the
virus is transmitted through exchange of bodily fluids such as blood, semen,
vaginal fluids and breast milk.52 One is infected by engaging in unprotected
sex, needle-sharing and breastfeeding and not through casual contact.53
None of the appellants fell within any of these relationships.54 Had any of
them been a sexual or needle-sharing partner of the patient, the Court
concluded, the person might have been able to make a claim that he or she
was a reasonable foreseeable victim of a breach of a duty to warn.55
Whether the holding in Tarasoff would sway common law courts outside
the U.S. remains to be seen. But as O’Dair observed, Tarasoff evinces two
characteristics that diminish its utility in England: First, it involves liability
for an omission, contrary to the traditional view of English courts
recognizing only a moral duty to act.56 Second, Tarasoff imposes liability
on a defendant for the deliberate wrongdoing of a third party (patient).57
This traditional view seems to have been altered by the leading case of The
47. E. J. Kermani & B. A. Weiss, AID and Confidentiality: Legal Concept and Its
Application in Psychotherapy, 43 AM. J. PSYCHOTHERAPY 25, 29 (1989).
50. Lemon v. Stewart, 682 A.2d 1177, 1182 (Md. Ct. Spec. App. 1996).
53. Id. (quoting Faya v. Almaraz, 620 A.2d 327, 445 (1993).
54. Id. at 1182-83.
55. Id. at 1184.
56. O’Dair, supra note 38, at 236-37; Smith v. Littlewoods Organisation Ltd.  AC
241, (H.L.) 271; MARGARET BRAZIER & EMMA CAVE, MEDICINE, PATIENTS AND THE LAW 86-
87 (Penguin Books 4th ed. 2007); CHALMERS, supra note 6, at 71.