Lexington man's lawsuit says doctors misdiagnosed, treated him for HIV

gkocher1@herald-leader.comSeptember 1, 2013 

Bobby Russell, 43, of Lexington, has filed a suit alleging that he was misdiagnosed with the virus that causes AIDS.

GREG KOCHER | STAFF — Herald-Leader Buy Photo

Bobby Russell received HIV treatments for almost eight years before receiving a shocking diagnosis: He never actually had the virus that causes AIDS.

Now the 43-year-old Lexington man is suing the doctors and others at the University of Kentucky Medical Center, the UK-affiliated Bluegrass Care Clinic, and the Fayette County Health Department for medical malpractice.

Russell, 43, claims the defendants were negligent in misdiagnosing him and negligent in failing to order the appropriate tests for HIV.

“I feel like I was sentenced to a crime I wasn’t guilty of,” Russell said in an interview. “I have intentionally put distance between my family and my friends because I thought I was dying, and I didn’t want my family to see me dying. I didn’t want my nieces and nephews see me deteriorating. I thought I was dying…

“Emotionally, mentally, it destroyed me. It just destroyed me,” Russell said. “In 2009, when things got really bad for me, suicide was a strong option for me.”

But Russell said he never attempted suicide. He seeks a trial by jury and an award for compensatory damages and “all other relief” a jury deems appropriate.

The lawsuit filed in Fayette Circuit Court in August says Russell spent eight years believing he had HIV after he was incorrectly diagnosed in 2004. The diagnosis came after a visit to the UK Medical Center emergency room, where Russell was treated for profuse bleeding from the colon. (An earlier routine test at the health department had come back negative for HIV.)

Russell learned he never had the virus after a new test was done at Bluegrass Care Clinic in August 2012.

In between, Russell focused on treatment and “an extensive medication regimen” because “he was afraid he was going to die,” the lawsuit says.

Jonathan C. Dailey, the Washington D.C. lawyer who represents Russell, said no one ever conducted a full spectrum of tests for HIV.

“The fact is that the standard-of-care-protocol methodologies for HIV testing were never done,” Dailey said. “By failing to follow the standard protocol, and telling him that he was HIV positive, telling him that he could only have relations with HIV-positives, then that damage has been done. You can’t take that back. That’s the critical part of this case.”

UK spokesman Jay Blanton wrote in an email that, “as a policy, we do not comment on pending litigation.” (Bluegrass Care Clinic, an infectious disease and HIV/AIDS clinic, is affiliated with UK’s medical school.)

Greg Hiles, a spokesman for the Fayette County Health Department, had no comment but said the matter has been turned over to legal counsel.

Russell said after he was diagnosed with HIV, he took the drug cocktail HAART (or highly active antiretroviral therapy) that routinely keeps many HIV and AIDS patients alive today.

Through the years, tests would provide negative or “undetectable” results, but Russell said “I really never gave it any more thought because I’d already gotten to the point of accepting a diagnosis and treatment.”

That changed when Russell, a military veteran, sought benefits from the Veterans Administration.

“The Veterans Administration had always said, ‘You give us a confirmatory test and we’ll start these benefits for you,’” Russell said. “But nobody had a confirmatory test result to provide me to give to the Veterans Administration.”

The suit says that on Dec. 7, 2012, an infectious disease specialist at Bluegrass Care Clinic told Russell that it appeared no one had ever completed a confirmatory test.

In similar cases, defendants and insurance companies often insist that a plaintiff like Russell ought not to be in court complaining because he is still alive. Dailey has a counter-argument.

“I would ask a jury to look at what they (medical providers) exposed Mr. Russell to, look at the hell they put him in, and look at the emotional devastation that it caused him for over eight years, and then consider what they think the appropriate measure of damages is, even though, yes, he is still alive,” Dailey said.

“We’re talking about stigma, we’re talking about living with disease on a daily basis,” said John Tackett, Russell’s Lexington attorney.

The lawsuit does not seek punitive damages. But if victorious, Dailey said he hopes the suit will “change the protocol so there aren’t more victims in the future.”

Russell said he has had sexual relationships with three HIV-positive partners since he was diagnosed, but he has been in a committed relationship with an HIV-positive partner for the last two years.

Dailey was the attorney for Terry Hedgepeth, a man who sued a Washington D.C. clinic in 2005 because it had mistakenly told him five years earlier that he was HIV-positive. That case was settled in 2012 about a year after the D.C. Court of Appeals unanimously ruled that medical patients who are given incorrect information from their doctors about a life-threatening illness can seek recourse through the courts for emotional distress.

Russell’s suit doesn’t specifically seek damages for emotional distress, but Dailey said that is included in seeking relief for compensatory damages.

Russell lives on his Social Security checks, but he said the suit is not about money.

“This has been the most traumatic event for me. The worst. The worst,” Russell said. “I’m not so sure the next person can be as strong as I have to be able to stand up and fight for what they believe in. If it saves one person, it’s worth it.”

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