Introduction. Imagine the inconceivable for one moment. One of your family members has contracted the HIV virus. Learning to cope with such an unfortunate circumstance would be difficult within itself. But it does not just end there. Your loved one has met someone and plans to marry her. You have also learned that your relative has exposed this person to the HIV virus, but has not yet mustered the courage to reveal such information, and told you he does not plan to tell the person at all. At this point, you know your family member has committed a crime.1 And as if the stress was not unbearable enough, your soon-to-be in-law comes to you concerned and explains that she has noticed changes in your family member’s health. She wants to know if your family member has told you anything about his health.
You are placed in a difficult situation. You do not want to betray the trust established between you and your loved one, yet at the same time, you know disclosing such pertinent information could possibly save a person’s life. Which obligation is greater: your obligation as a family member or as a law-abiding citizen?
A recent case–similar to the scenario described above–has sparked this very issue. In Jane Doe v. Elizabeth Dilling, the plaintiff,2 brought an action against the parents of her deceased fiancé under the tort claim of fraudulent misrepresentation, alleging that they misrepresented their son’s HIV status to her after she made numerous inquiries to them.3 At trial, a jury awarded the plaintiff two million dollars in compensatory damages, however, this award was vacated in appellate court.4 This case was the first of its kind and it contains a number of issues surrounding privacy, as well as moral and legal obligations.5 The case is now before the Illinois Supreme Court to determine whether the plaintiff should receive damages from her former fiancé’s parents.6
Though the appellate court held that the plaintiff did not deserve damages from her fiancé’s parents, and the Supreme Court will most likely affirm that decision,7 an important issue was brought to the attention of the appellate court: is a family protected under the Illinois AIDS Confidentiality Act8 when they make an outright denial or misrepresentation of their relative’s HIV or AIDS status to a closely related third party?9 This article will first review the Dilling case, and how the court arrived at this issue. The second section will then consider both sides of the argument of family members’ protection under the AIDS Confidentiality Act. Finally, the article will discuss future implications of the Dilling decision.
Doe v. Dilling. The plaintiff, Jane Doe, was a college educated woman in her forties when she met her fiancé, Albert.10 The two of them met through a personals ad and began dating in April of 1996.11 At trial, Doe testified that she discussed the issue of sexually transmitted diseases with Albert, as well as "asked [him] if he had anything to tell her on the subject."12 Doe testified that she believed what Albert told her.13 In late August of that same year, Doe engaged in unprotected sex with Albert.14 Doe noticed that Albert had dark colored pigmentation on his genitals which appeared "unusual" to her. Doe inquired about it, and Albert told Doe that he had previously suffered from warts on his hands and genitals due to handling plant materials as a landscaper.15 Doe also noticed that Albert was "unstable on his feet" and had great difficulty walking straight.16
In September of 1996, Doe became ill with "flu-like symptoms."17 She testified that she did not seek medical care when she became ill, because she assumed she just had the flu.18 After they had been dating for several months, Doe noticed a continued decline in Albert’s health.19 During this time period, Doe was aware that Albert was receiving medical treatment, but was under the impression that he was being treated for heavy metal poisoning.20 Doe did not accompany Albert when he was receiving his treatments at this time.21
In the spring of 1997, Albert proposed to Doe and introduced her to his parents for the first time.22 Doe testified that Albert’s parents were "in charge of [his] medical care," as they paid for the majority of Albert’s medical expenses.23 Most of Albert’s doctors were personal acquaintances of his father’s.24 Over the course of two and a half years, the topic of Albert’s health came up in conversations with his parents, and each time, Doe was told that Albert had heavy metal poisoning and Lyme disease.25 Doe testified that she had formed a close relationship with the Dilling family, and already felt like she was their daughter-in-law.26 Because of the close relationship that developed, Doe trusted the Dillings and believed their statements about Albert’s condition.27 Albert moved in with Doe eventually and she became his primary caretaker.28 During this time, she noticed changes in her own health,29 but attributed those changes to the stress of taking care of her ailing fiancé and working full time.30 Once again, she did not seek medical care for herself.
In November of 1999, Doe attended a doctor’s appointment with Albert and learned that he was HIV positive.31 She then immediately sought testing for HIV and found that she too was HIV positive.32 However, she did not seek treatment until four months after learning of her infection.33 Albert died shortly after the November doctor’s visit where he tested positive for HIV.34
Doe brought suit against the Dillings claiming that they had fraudulently misrepresented Albert’s condition to her when they told her Albert was suffering from heavy metal poisoning and Lyme disease, knowing he had HIV/AIDS. Her attorneys as well as the court emphasized that the crux of her claim was not that the Dillings’ misrepresentation caused her to contract the virus from Albert, but that their misrepresentations delayed her from seeking testing, which also delayed her learning of her status and receiving treatment that could have prolonged her life.35
The Dillings moved for a directed verdict on the fraudulent misinterpretation count because they argued that Doe did not prove that she acted "in justifiable reliance" on the alleged misrepresentations.36 In addition, the Dillings both testified,37 that they did not know that Albert was HIV positive before Albert was tested in November of 1999 and that they believed that he had heavy metal poisoning and Lyme disease.38 At trial, a jury found that the Dillings were liable for fraudulently misrepresenting their son’s HIV status, and returned a verdict in favor of Doe and awarded her two million dollars in compensatory damages. The Dillings appealed the verdict.
The appellate court reversed the award of damages and held that Doe did not prove that the Dillings fraudulently misrepresented their son’s condition to her, therefore delaying her from being tested and receiving treatment earlier. The court held that Doe did not have "justifiable reliance" on the Dillings’ statements. Essentially, the court based its decision on the opinion that Doe, an educated woman, had "independent means to learn that she had been infected with HIV."39 The appellate court believed that as early as mid-May of 1997, which was before Doe met the Dillings, she had reasonable suspicion that Albert was not being truthful with her.40
The court also held that Doe did not sufficiently prove that the Dillings even knew their son was HIV positive prior to November of 1997.41 The fact that Albert’s father was personally acquainted with his doctors and that the Dillings paid for all of Albert’s medical expenses did not clearly establish that they knew their son was HIV positive and concealed that information from Doe. The court also found that, by asking the Dillings about Albert’s condition, Doe was indirectly asking about her own condition, which was unreasonable.42 As the court stated, "Doe should have realized that the trustworthiness of the Dillings was questionable. One cannot truly expect her fiancé’s parents to reveal a secret that their son would not."43
In addition to the arguments presented to the appellate court, an amicus curiae brief was submitted by the AIDS Legal Council of Chicago44 on behalf of the Dillings. In its brief, the Council argued that the court should base its decision on the Illinois AIDS Confidentiality Act which states in relevant part:
No person may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits the identification of the subject of the test.45
Essentially, the Council made the argument that the Dillings did not have a duty to disclose their son’s HIV status to Doe, because to do so would have been a violation of the Confidentiality Act.46 Had the Dillings made such a disclosure, they could have possibly been defendants in a suit brought by their own son. The Council asserted that placing such a duty on parents of a child with HIV would place them in a difficult situation. "Asking parents about their child’s HIV status puts them in the unenviable position of having to choose between providing accurate information in violation of the Confidentiality Act, remaining silent, or deflecting the question by invoking the Confidentiality Act."47 Doe, on the other hand, argued that the Dillings cannot be shielded by the Confidentiality Act because the Act was not in place to further "outright misrepresentation[s]" of a person’s HIV status.48
Though the appellate court based its decision on Doe’s failure to satisfy the "justifiable reliance" element of the tort of fraudulent misrepresentation, the court noted that the issue of whether a family member’s outright denial of a person’s HIV status should be protected under the Confidentiality Act was a valid one for the courts to consider in future cases.
The Confidentiality Act Argument. The purpose of the Illinois AIDS Confidentiality Act is to "encourage the public to submit to voluntary testing through an assurance of confidentiality."49 This is a logical premise on which to establish such a law. If the results of an individual’s HIV test were subject to disclosure by any person for any reason, people would be less likely to submit to such testing.
However, in the issue presented in the Dilling case, it is not just any person requesting results for any reason. A parent is confronted with the difficult decision of revealing personal details of his or her child’s health to a person who has a valid interest in knowing such information: a future spouse. The Dilling case also sheds light on the particular circumstance when family members are intentionally misrepresenting or denying their relative’s HIV status when asked. The court noted that Albert Dilling was committing a crime when he knowingly exposed Doe to the HIV virus.50 If the Dillings had actual knowledge that their son was HIV positive, and they made outright denials or misrepresentations of Albert’s status to Doe, in essence, they would have aided and abetted a crime. This is not what the Confidentiality Act intended to protect. Under this line of reasoning, a court may decide that the Confidentiality Act does not protect family members who intentionally deny or misrepresent the status of their loved ones.
On the other hand, it would be difficult to place a standard on exactly who can disclose such information to whom. The court’s doors would essentially be opened to any person who felt as though family members of an infected person should have disclosed their loved one’s status. Such an effect would de-emphasize the importance of personal responsibility to seek testing and not rely on the statements of lay persons to indirectly learn of one’s own status. This line of reasoning is already being considered by the Illinois Supreme Court, as it is reviewing the appellate court’s decision in Dilling. Chief Justice Bob Thomas questioned at oral arguments, "are we going to open up every human relationship to litigation?"51 Such questioning indicates the court’s apprehension in deciding that family members have a duty to disclose a loved one’s HIV status.
Conclusion: Future Implications of Dilling and the Confidentiality Act. Though the appellate court noted the aforementioned issue of precluding a family member’s protection under the Confidentiality Act in Dilling, there was enough evidence in Dilling to convince the court that Doe had the independent means to learn of her own HIV status. As a result of this, the court was able to base its decision on Doe’s failure to satisfy the "justifiable reason" element of the tort of fraudulent misrepresentation. Since there was a substantial amount of evidence that showed Doe had reasonable suspicion of her fiancé having HIV and many opportunities to learn of her own status by being tested, it is likely that the Illinois Supreme Court will affirm the appellate court’s decision to vacate the two million dollar award.
However, the separate issue of a family’s duty to disclose is one that will not easily go away, as future cases will arise with a different set of facts that will not easily apply to the decision the court arrived at in Dilling. The courts will then have to decide exactly what statements are protected under the Confidentiality Act and exactly who is protected under it. Such questions are difficult ones to consider, but not nearly as difficult as the circumstances each person affected by such a decision will have to face.n
1 720 ILCS 5/12-16.2 (West 2007). The Act reads in relevant part: " A person commits criminal transmission of HIV when he or she, knowing that he or she is infected with HIV . . . engages in intimate contact with another."
2 The plaintiff is referred to as Jane Doe in this case, because she did not wish to disclose her identity.
3 See generally Jane Doe v. Elizabeth Dilling, 371 Ill.App.3d 151, 861 N.E.2d 1052 (1st Dist. 2006). Hereinafter Dilling.
5 Id. at 175, 1071. See also John Patterson, Case of AIDS, Secrets Heads to Illinois Supreme Court, Daily Herald available at http://www.dailyherald.com/story/print/?id=80223 (last visited Nov. 19, 2007).
6 223 Ill.2d 633, 865 N.E.2d 967 (2007).
7 Dilling, 371 Ill.App.3d 151, 861 N.E.2d 1052 (1st Dist. 2006).
8 410 ILCS 305/9 (West 2007) (prohibiting the disclosure of the identity of an individual who has taken an HIV test as well as the results of the test).
9 Dilling, 371 Ill.App.3d at 179, 861 N.E.2d at 1075 (1st Dist. 2006).
10 Id. at 154, 1055.
11 Id. at 155, 1055.
13 Id. Albert’s actual statements to Doe were barred under the Dead-Man’s Act (735 ILCS 5/8-201 (West 2002)).
14 Dilling, 371 Ill.App.3d 151, 155, 861 N.E.2d 1052, 1056 (1st Dist. 2006).
16 Id. at 156, 1056.
19 Dilling, 371 Ill.App.3d 151, 156, 861 N.E.2d 1052, 1056 (1st Dist. 2006). Doe specifically testified that Albert looked "a little worn out," and that he had lost a significant amount of weight. She also observed that his skin looked very dry. Id. Doe testified that she "asked Albert about appearance and she believed his answer." Id.
20 See id.
21 See id.
23 Id. at 157, 1057.
24Dilling, 371 Ill.App.3d 151, 157, 861 N.E.2d 1052, 1057 (1st Dist. 2006).
25 Id. at 156, 1056. Doe testified that she was told by the parents that Albert had heavy metal poisoning as early as the first time she met them. Id at 156, 1056.
26 Id. at 157, 1057.
29 Dilling, 371 Ill.App.3d 151, 158, 861 N.E.2d 1052, 1057 (1st Dist. 2006). Doe testified that she noticed that her gums would bleed profusely, she was losing hair, and her skin would split and produce sores. Id.
31 Id. Albert was tested and given the results of that test in Doe’s presence. Id.
32 Id at 158, 1058.
34 Dilling, 371 Ill.App.3d 151, 157, 861 N.E.2d 1052, 1057 (1st Dist. 2006).
36 Id. "To prevail on a claim of fraudulent misrepresentation, the plaintiff must establish the following elements: (1) the defendant made a false statement of material fact, which (2) the defendant knew or believed to be false and (3) made it with intent to induce the plaintiff to act; (4) the plaintiff acted in justifiable reliance on the truth of the statement; and (5) thereby sustained damages." Id. at 168, 1065. The court based its analysis on the plaintiff’s failure to meet the "justifiable reliance" element.
37 Kirk Dilling, Albert’s father, died before the trial. Mentioning of his testimony is in reference to his deposition testimony. Elizabeth Dilling testified at trial.
38 Dilling, 371 Ill.App.3d at 158, 861 N.E.2d at 1058. See also id. at 159, 1059.
39 Dilling, 371 Ill.App.3d 151, 178, 861 N.E.2d 1052, 1073. The court stated in relevant part: Doe admitted that she was "very aware" of sexually transmissible diseases (STDs) and that HIV is an STD. Shortly after having had unprotected sex with Albert, Doe developed a flu-like illness in September of 1996. . . . In the course of the six months following her own flu-like illness, Doe saw Albert lose weight and look worn out and tired. Doe was also aware that Albert was seeing a doctor for "heavy-metal poisoning." A prudent adult in a new relationship who is aware of STDs would be concerned under such unfortunate circumstances about having been infected with HIV. Id. at 177, 1073.
41 Doe submitted evidence of the Dilling’s former son-in-law overhearing a conversation in November 1997 between the Dillings regarding Albert’s HIV status. Dilling, 371 Ill.App.3d at 176, 861 N.E.2d at 1071. This evidence indicated that as early as that date, the Dillings were aware of their son’s HIV positive status.
42 See id. at 178, 1073.
44 Hereinafter the Council.
45 410 ILCS 305/9 (West 1996) cited in Dilling, 371 Ill.App.3d 151, 179, 861 N.E.2d 1052, 1074 (1st Dist. 2006).
46 Dilling, 371 Ill.App.3d 151, 179, 861 N.E.2d 1052, 1074 (1st Dist. 2006).
49 30A.Ill. Law and Prac. Public Health and Environment §44.
50 See Dilling, 371 Ill.App.3d at 171, 861 N.E.2d at 1069 at n 9. See also supra note 1.
51 Dilling, 371 Ill.App.3d 151, 175, 861 N.E.2d 1052, 1071 (1st Dist. 2006). See also John Patterson, Case of AIDS, Secrets Heads to Illinois Supreme Court, Daily Herald available at http://www.dailyherald.com/story/print/?id=80223 (last visited Nov. 19, 2007).
April Joy-Marie Morgan is a third year law student at Northern Illinois University College of Law. She serves as an Assistant Editor for the Law Review. She has been published by the Kane County Bar Journal.