Kaiser Tested for HIV Without Consent, Class Claims

VANCOUVER, Wash. (CN) - Kaiser intentionally performed HIV tests on thousands of health plan members without their consent, alleges a class action complaint filed in Clark County Superior Court.

Lead plaintiff Mary E. Benton claims Kaiser instituted a new protocol in April 2013 that required members between 50 and 65 to receive Human Immunodeficiency Virus (HIV) screening as part of their routine care.

The tests were conducted on 6,500 members, including Benton, without notification or consent between April 11 and May 5, according to the complaint. Benton says the members had no idea they were being tested for the virus and, therefore, were never presented with the opportunity to "opt out" of testing.

They were also never provided information about what an HIV test is and the potential risks associated with it.

Benton said she didn't know what had happened until May 13, when she received a letter dated April 26, explaining she had been tested.

Benton's "autonomy, privacy and confidentiality were violated by defendants and she has experienced a loss of trust in Kaiser defendants as a result of this unauthorized and unconsented HIV testing," according to the complaint.

R. Travis Jameson, attorney for the plaintiff, told Courthouse News that discovery has yet to be conducted and that he could only speculate on why Kaiser implemented its policy, but that letters issued to his clients indicate the policy was introduced in conjunction with the U.S. Preventative Services Task Force (PSTF).

According to its website, the PSTF is an independent panel of non-federal experts in prevention and evidence-based medicine comprised of a collection of physicians, nurses and health behavior specialists. The group, in part, makes "recommendations that are relevant to implementing the Affordable Care Act," or Obamacare.

"The task force's claim is that through the [Centers for Disease Control], they want to identify people who may be HIV positive, but are unaware. We have concerns about that because I was contacted today about another client who was tested without consent, and this is after an oversight period with Kaiser took place. My clients include the wife of a Senator to an individual that counsels high-risk individuals, a local nurse to a real estate professional, so a wide cross-section of the community is being tested," Jameson told Courthouse News.

He added that not only does the unauthorized testing create a feeling of resentment against Kaiser, but disregards patients' rights.

"The state takes very seriously the fundamental rights of patients, their right to autonomy. It's another situation where someone thinks they know better what is good for you, than you do. The sense is, you haven't been violated if you don't know you have been violated," Jameson said.

Plaintiffs are suing for violation of state law and seek a determination that defendants are financially responsible for notifying all class members of its unlawful conduct.

Paul Stritmatter, Brad Moore and R. Travis Jameson of Stritmatter Kessler Whelan Coluccio, in Seattle, represent the class.

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