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Being Alive

Insurance and HIV Testing


Being Alive 1993 Feb 5: 13

A jury recently awarded a Northern California plaintiff $400,000 for mental distress and related damages in connection with an AIDS blood test that an insurance company ordered when processing the man's life insurance application.

While an applicant for life insurance (but not health insurance) can be asked to take an HIV antibody test to help determine insurability, there are very specific and concrete provisions under the insurance Code that protect applicants from unscrupulous practices, and to make sure there is informed consent prior to taking the blood test, with detailed and comprehensive disclosures that must be given and signed. Also, if a blood test turns out seropositive, the insurance company must comply with specific procedures to make certain the applicant is protected from being stigmatized or unduly shaken.

In the Northern California case, the plaintiff was asked to take the AIDS blood test but was not advised of his right to refuse or the implications of taking the test. He did not know that his test would turn out to be seropositive, and was severely distressed and shocked when the insurance company informed him of the results without following the procedures set forth in the Insurance Code. A jury found that the insurance company failed to comply with these clearly mandated technical provisions of the Insurance Code, and thereupon awarded him a judgment in the sum of $400,000.

I was interested to learn more about that case, and researched the subject further. I found that insurance companies are still not fully complying with the provisions of the Insurance Code, and it is very likely that other insurance applicants have been aggrieved as a result. I would be interested to hear from any readers who have personally had a problem of this sort or who know someone that has.

To compound the situation, insurance companies may then violate other provisions of the law pertaining to confidentiality and report the results to consumer credit agencies such as MIB in Massachusetts which has a growing medical information data base on individuals compiled from insurance companies, public records, and other sources even though the reporting of such medical data may violate confidentiality laws.

Finally, the problem is further exacerbated because applications for insurance (whether for life, disability of health insurance) always include a question to the effect, "Have you been diagnosed with or have you been told you have AIDS or the HIV antibody?" A question of this sort "Have you been told..." is unduly ambiguous. "Told" by whom and at what point in time? Moreover, the definition of AIDS had changes. Just last week, the Center for Disease Control announced a new, more inclusive, definition of AIDS, after much political imbroglio and lobbying. The updated definitions are a victory for AIDS activists, who have sought an expanded definition to allow for more federal funds to deal with the epidemic. Under the broader definition, an HIV+ patient will be diagnosed as having AIDS if the number of T-cells is 200 per cubic milliliter of blood or lower, about one-fifth the level of a healthy person. This expanded definition will increase the nation's roster of new AIDS patients by a factor of 75% in 1993, with 90,000 new diagnosed cases predicted as compared to an average of 50,000 in previous years. With more people being diagnosed with AIDS, more critical problems of discrimination by health insurance companies are likely to be reported.

A final problem exists in that laws protecting the confidentiality of AIDS blood tests do not apply to tests used to detect the T-cell level. Insurance companies already have been trying to circumvent confidentiality laws by seeking T-cell tests instead of HIV tests. It is therefore imperative that laws be enacted in each state to mandate the confidentiality of T-cell tests in the same manner as HIV tests. And further, these laws should be strengthened to prevent insurance companies from supplying MIB and other database firms with confidential medical information about AIDS patients and others who stand to lose if their privacy is breached.

(John Alan Cohan is an attorney specializing in will, trusts and probate. He welcomes your calls at 310.557.9900 or 800.255.1529.) 


Information in this article was accurate in February 5, 1993. The state of the art may have changed since the publication date. This material is designed to support, not replace, the relationship that exists between you and your doctor. Always discuss treatment options with a doctor who specializes in treating HIV.