Class Action Says Kaiser HIV Screening Lacked Patient Consent

According to a class action lawsuit that was recently filed in Oregon federal court, Kaiser Permanente allegedly performed Human Immunodeficiency Virus (HIV) screening on patients between the ages of 50 and 65 without their knowledge or consent, even though the health care provider was obligated to provide an opportunity to opt out of the HIV testing.

The plaintiffs allege that on or about April 11, 2013, Kaiser Permanente instituted a new policy and ordered HIV screening for members between the ages of 50 and 65 as part of their routine care. However, the health care provider allegedly failed to communicate the new protocol to an estimated 6,500 members, and performed HIV tests without the knowledge or consent of their patients. According to the class action lawsuit, the plaintiffs were not informed that they had been subjected to an HIV test until May 2013, after the tests had already been conducted.

The class action lawsuit alleges that the HIV testing was not mandatory and Kaiser Permanente was under an obligation to allow patients to opt out of the screening. Because the health care provider failed to inform patients that they were being subjected to an HIV test, the plaintiffs allege that their autonomy, privacy, and confidentiality was violated, and that they experienced a loss of trust in Kaiser Permanente from this unauthorized testing.

Defendants have engaged in repeated conduct that has deprived Oregon consumers of the right to decline voluntary HIV testing and medical self-determination, the class action lawsuit says. Specifically, the plaintiffs claim that the health care providers failed to provide the plaintiffs and putative Class Members written information explaining, inter alia, 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.

The plaintiffs are bringing claims for violations of Oregon law and invasion of privacy. Oregon Revised Statute (ORS) 433.045(1) states that no person shall subject the blood of an individual to an HIV test without first obtaining informed consent as described in that statute. According to the class action lawsuit, the plaintiffs have suffered emotional distress and are entitled to damages in the amount of no less than $1,000 each.

This Oregon action is similar to a class action lawsuit that was filed against Kaiser Permanente in Washington in October. In the Washington action, the plaintiffs also claim that they were subjected to HIV testing without their knowledge and consent, without an opportunity to opt out of the screening.

The plaintiffs are represented by Brad J. Moore of Stritmatter Kessler and Mark E. Griffin of Griffin & McCandlish.

The Kaiser Permanente HIV Test Class Action Lawsuit is Barbara Kelley, et al. v. Kaiser Permanente, et al., in the U.S. District Court for the District of Oregon, Portland Division.

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