Appeals court rules in favor of Dallas Observer in HIV case

Posted on 09 Feb 2006 at 11:54pm
By David Webb Staff Writer


James A. Hemphill


Billion-dollar lawsuit over unless plaintiff who sued alternative weekly for revealing his HIV-positive status appeals 3-judge panel’s ruling

The 5th District Court of Appeals has rejected a billion-dollar civil suit filed by a Cathedral of Hope employee against the Dallas Observer for revealing his HIV-positive status.

James A. Hemphill of Austin, the newspaper’s attorney, said the ruling by a three-judge panel on the court on Jan. 24, ends the case unless the plaintiff decides to appeal the decision to the Texas Supreme Court or ask the Dallas appeals court for a rehearing.


James N. Henry Jr.

“It is certainly what we had hoped for and thought was the right result,” Hemphill said.

The plaintiff’s lawyer, James N. Henry Jr., of Dallas, did not return two messages left on his office voice mail.

Henry had argued that the newspaper violated the Texas Health and Safety Code, a confidentiality law that prohibits the disclosure of the results of an HIV test.

An opinion written for the appeals court by Justice Mark Whittington said the alternative weekly had not violated the confidentiality law because it did not have access to the plaintiff’s test result or other medical history and could not have released or disclosed the information.

Hemphill said the state law was not intended to apply to the media but only to people who have special access to medical information, such as hospitals and other health care facilities, laboratories, employers and insurers.

“There is rightfully very strong protection for the confidentiality of HIV test results in Texas, and I think that’s very proper,” Hemphill said. “However, protection was never meant to extend to something like the Observer that didn’t have access to any kind of medical records or employment records or insurance records.”

The plaintiff’s HIV status was revealed in a Dec. 4, 2003, story called “Fallen Angel.” The story, written by J.D. Sparks, reported allegations of fiscal mismanagement at the church, including a claim that church volunteers were placed on the employee insurance plan.

Sparks wrote that a former church employee alleged that church leaders ordered her to add volunteers to the insurance plan, including the plaintiff who was HIV-positive. The plaintiff also sued the church employee but settled out of court with her last year. The terms of the settlement were not revealed.

Hemphill said the newspaper learned of the plaintiff’s HIV status because “he himself was open about it.”

“Basically, the entire Cathedral of Hope congregation knew that he was HIV-positive, and he did not try to keep that secret,” Hemphill said. “The plaintiff admitted he had told numerous people.”

Hemphill noted that the plaintiff was a member of Positive Voices, an openly HIV-positive chorale group. The group’s CDs included the name of the plaintiff and his photo. The group performed publicly and advertised the CD on the Internet.

In reporting the appeals court’s decision, the newspaper again revealed the plaintiff’s name. The plaintiff had filed the lawsuit under the name John Doe.
Hemphill said he was not surprised that the newspaper published the plaintiff’s name in the most recent report, which characterized the lawsuit as “somewhat ridiculous.”

“There was no allegation in this lawsuit that the plaintiff’s identity and HIV status were indeed private,” Hemphill said.

“He didn’t sue for invasion of privacy because he was open about his status and did not try to keep it private.”

The plaintiff had originally included invasion of privacy and intentional infliction of emotional distress in the lawsuit but later excluded it in an amended version.

Hemphill said one of the newspaper’s arguments was that there was no privacy issue at stake because of the extensive self-disclosure by the plaintiff.

The Observer story raised the question of who was paying the plaintiff’s legal expenses. Henry has previously declined to comment on how the lawsuit has been financed.

Hemphill said he expects the ruling to set a precedent.

“I don’t think claims under this statute against newspapers and TV stations are common, but they are not unheard of,” Hemphill said. “This is the first time an appeals court has ruled on it so I think people were watching it.”

E-mail webb@dallasvoice.com

This article appeared in the Dallas Voice print edition of February 10, 2006.

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