Vol 22, 2013 Annals of Health Law 396
DUTY TO WARN OF THE RISK OF HIV/AIDS
absence of a special relationship between the two.76 Thus, establishing
foreseeability for the purpose of a duty to warn in connection with
HIV/AIDS does not pose a significant problem. Klar even suggested that
there is no known case where a claimant failed on foreseeability grounds.77
Proximity is a much more difficult hurdle. The term itself is conclusory
in nature and amounts in “effect to little more than convenient label[s] to
attach to the features of different specific situations which, on a detailed
examination of all the circumstances, the law recognizes pragmatically as
giving rise to a duty of care of a given scope.”78 This renders proximity a
double-edged sword capable of utilization by both the claimant and
defendant. A claimant might establish proximity on the basis of a
physician’s knowledge that his or her patient’s HIV/AIDS infection poses a
serious risk of injury to the claimant and other identifiable partners of the
patient. To succeed, the claimant must be able to establish the existence of
a relationship from which it is clear that she is at risk of infection. As
Lemon amply demonstrates, casual contact would not suffice.79
V. POLICY CONSIDERATIONS RELATING TO DUTY OF CARE
As mentioned above, residual policy analysis is the last stage of the
tripartite duty frameworks. In the context of HIV/AIDS, relevant policy
considerations include the impact of a potential duty to warn on a
physician’s already existing obligations of privacy and confidentiality
towards his or her patient, the need to avoid undermining the physician-
patient relationship, and a physician’s suitability for the performance of
notification duties. Others include the enforcement of coercive notification
laws, success of notification laws in reducing the spread of other sexually
transmitted disease, prevention of HIV infection, and accentuation of the
plight of already vulnerable populations.
A. Impact on Other Legal Obligations: Privacy and Confidentiality
A major policy consideration is the impact of a potential duty to warn on
76. Id. at 1195; But see N.O.L. v. Dist. of Columbia, 674 A.2d 498, 499 (D. C. 1995).
(The D. C. Court of appeal came to a contrary conclusion, that no duty to warn was owed to
appellant whose wife tested positive for HIV. The law in force does not permit such
disclosure without the written consent of the wife or a court order and since no such consent
or order was issued, no duty was owed to appellant).
77. Klar, supra note 67, at 215.
78. Caparo, 2 A. C. at 618.