UK Hospital asks judge to dismiss Lexington man's malpractice lawsuit for HIV diagnosis

vhoneycutt@herald-leader.comSeptember 18, 2013 

The University of Kentucky Medical Center and several other medical providers have asked a Fayette Circuit Court to dismiss a lawsuit filed by a man who said he was misdiagnosed in 2004 with the HIV virus that causes AIDS.

In a response filed Tuesday, UK medical officials contend that the factual premise of Bobby Russell's medical malpractice lawsuit is wrong; undisputed medical evidence shows conclusively that Russell suffered from HIV.

The defendants said in Tuesday's filing that Russell was correctly diagnosed with HIV, or the human immunodeficiency virus, when he went to the University of Kentucky Emergency Department on September 17, 2004.

The response says Russell was "appropriately worked up, tested and diagnosed with HIV" and "was likewise appropriately treated for his HIV, which explains why current tests show that his HIV is suppressed."

Russell's lawsuit, which was filed in Fayette Circuit Court in August, names as defendants the University of Kentucky Medical Center, the UK-affiliated Bluegrass Care Clinic, the Fayette County Health Department and others.

Russell's lawsuit said he spent eight years thinking he had HIV after he was incorrectly diagnosed in 2004. The diagnosis came after a visit to the UK Medical Center emergency room, where UK officials say in court documents that Russell was treated for viral symptoms including sore throat, fever, and open sores and wounds.

An affidavit signed by physician Alice C. Thornton, one of the defendants named in the lawsuit, said that Russell's HIV diagnosis was made early, that he was started on an anti-retroviral medication immediately, and that had suppressed his disease since 2004.

"We took the extraordinary step of moving to dismiss and attaching affidavits and medical records for one reason: the factual premise for Mr. Russell's lawsuit is wrong," UK spokesman Jay Blanton said Wednesday. "In September 2004, Mr. Russell was HIV Positive. There was no misdiagnosis. The university's health care professionals acted within the standard of care concerning both diagnosis and treatment. We hope the court will recognize that there is no reason for this lawsuit to continue."

Russell has said he learned he did not have the virus after a new test was done at Bluegrass Care Clinic in August 2012. Bluegrass Care Clinic is an infectious disease and HIV/AIDS clinic affiliated with UK's medical school.

Russell's lawsuit said that not one medical provider ordered a full spectrum test for HIV. UK officials say in their response that their tests were appropriate diagnostic tools.

Russell, a military veteran, told the Herald-Leader recently that he sought benefits from the VA but found that he could not provide a confirmatory test.

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

On Wednesday, Russell's Lexington attorney John Tackett referred questions to his co-counsel, Washington D.C. attorney Jonathan C. Dailey, who could not be reached for comment Wednesday.

UK officials are also asking for the hospital and Bluegrass Care Center to be dismissed from the case on the grounds that the Kentucky Supreme Court had established that the university is entitled to sovereign or governmental immunity from claims of medical negligence.

Valarie Honeycutt Spears: (859) 231-3409. Twitter: @vhspears

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