No Consent for Kaiser HIV Tests, Class Claims

PORTLAND, Ore. (CN) - Kaiser Permanente did routine HIV screening on members between the ages of 50 and 65, without telling them, and without offering them an opportunity to "opt out," according to a class action lawsuit filed in United States District Court for the District of Oregon, Portland Division.

Barbara Kelley and William Pearse sued on behalf of themselves and all persons similarly situated, for unfair trade practice, breach of privacy and fraud.

According to the complaint, Kaiser's policy, as of April 11, 2013, has been to conduct Human Immunodeficiency Virus (HIV) testing for members between the ages of 50 and 65 as part of their routine care. However, "From on or about April 11, 2013, and until on or about May 5, 2013, defendants did not communicate this new protocol to an estimated 6500 members," Kelley and Pearse allege. "Defendants were obligated to allow members the option of 'opting out' of HIV testing," but that did not happen, Kelley and Pearse say. They claim they were tested without their knowledge or consent "on or about April 19, 2013."

According to the complaint, Kaiser and its agents, employees and representatives "caused an estimated 6500 members, including plaintiffs Kelley and Pearse, to be tested for HIV without consent and unbeknown to the members." Kelley and Pearse say they were not informed until May, after they had been tested.

Kaiser also did not provide its members with a written explanation of "what an HIV test is; behaviors that place a person at risk for HIV infection; the potential risks of HIV testing; and/or the limitations on disclosure or use of testing results obtained."

"Plaintiffs' autonomy, privacy, and confidentiality were violated by defendants and they have experienced a loss of trust in Kaiser defendants as a result of this unauthorized and unconsented to HIV testing," the complaint states.

A June 2004 policy statement on HIV testing issued by the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), reads in part:

"The conditions of the '3 Cs', advocated since the HIV test became available in 1985, continue to be underpinning principles for the conduct of testing of individuals. Such testing of individuals must: 1) be confidential; 2) be accompanied by counseling; and 3) only be conducted with informed consent, meaning that it is both informed and voluntary."

This is not the first such case against Kaiser. Last month, Courthouse News reported a class action on the same issue, filed in Clark County (Wash.) Superior Court on Oct. 28.

Kelley and Pearse are represented by Brad J. Moore of Stritmatter Kessler in Seattle, Wash. and by Mark E. Griffin of Griffin & McCandlish in Portland, Ore.

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