02/15/07 (TX):
HIV: Court Agrees Expert's 'Late Seroconversion' Claim
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Rejecting a hospital's contention that a nursing assistant could not have been infected from a needle-stick injury because she tested HIV-negative as late as 17 months later, a Texas appeals court in Houston upheld the award of state Workers Compensation benefits to Angela Price in a recent decision.
According to Justice Elsa Alcala's opinion, Price was drawing blood from an HIV-positive patient in June 1994 when she stuck her finger with the needle. She immediately went to the emergency room, where she got a baseline negative HIV-test result. She tested negative on three subsequent occasions thru April 1995, and - according to hospital evidence barred from the court record on technical grounds - again in November 1995.
However, when Price had a blood test in December 1998 in connection with a life insurance application, she tested positive for HIV.
Price filed a claim for Workers Compensation benefits, asserting that she had acquired the HIV infection from her 1994 needle-stick injury, but a hearing officer and the appellate panel of the Texas Workers Compensation Commission both upheld her position.
The hospital appealed the panel's decision to the Fort Bend County District Court, where the case was heard in a jury trial. It was at this point that the hospital failed to comply with a timing requirement regarding introduction of evidence about Price's purported negative test in November 1995, 17 months after her injury.
The jury ruled in Price's favor, after her expert witness, Dr. Patricia Salvato, testified about reports concerning people who had converted from negative to positive test results long after being exposed to HIV, including a report by the federal Centers for Disease Control and Prevention (CDC) concerning a health care worker with a record similar to Price, and a study reported in the New England Journal of Medicine on late seroconverters, documenting cases extending as long as 36 months.
On appeal, the hospital claimed that the exclusion of the November 1995 HIV test results was a fatal error, and that Salvato's testimony should have been excluded as unreliable. The court of appeals disagreed on both counts.
Justice Alcala pointed out that any error in excluding the medical records was negated by testimony from the hospital's expert witnesses, who had been allowed to testify about the November 1995 test records, and to give their opinions that a person who tested negative 17 months after a needle-stick injury had not acquired HIV infection from that incident.
One expert for the hospital, Dr. Edward Septimus, testified that a negative test result 17 months after exposure "would virtually rule out" that the incident caused the infection and that "it would be 99.9 percent that the transmission did not occur."
The case, however, turned on Salvato's testimony. The court noted that her primary practice is HIV/AIDS, and that she based her opinion on "the medical history Price gave to her in the course of their six-year doctor-patient relationship; the progression of Price's T-cell count; medical articles regarding the progression of HIV and AIDS, including the period of time for which persons can be infected before seroconversion; and her own experience and education regarding HIV infection."
Perhaps most striking was the New England Journal article documenting seroconversion up to three years after exposure to HIV. The hospital argued that this study was invalid because it focused on gay men, and pointed out that even Salvato acknowledged that the journal's findings did not disprove the "conventional thinking that 95 percent of persons infected with HIV test positive on an antibody test within six months."
Justice Alcala wrote that the hospital failed to explain why a patient's gender or sexual orientation was a factor, noting Salvato's testimony that "It doesn't matter how you get the virus, the virus is the same."
The court also pointed out that even if Salvato's testimony were erroneous, other factors supported the verdict. Because the Workers Compensation panel ruled in Price's favor, the burden shifted to the hospital to prove that the needle-stick did not cause Price's infection. Another of the hospital's expert witnesses testified that seroconversion nine months after infection was "possible, but very rare".
Furthermore, Price said that she had no other exposure to HIV during the relevant time, other than the needle-stick injury, and this testimony was evidently not shaken on cross-examination.
Consequently, the only evidence in the record concerning how Price could have picked up an HIV infection - which the hospital failed to contradict - regarded the 1994 needle-stick injury, requiring a ruling in her favor.
© X-Pro 2007
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