A Tale of Two Lovers: Legal Ramifications of STDs

What are my options if someone gives me a STD?

This question may not have had any significance 10 or 20 years ago, however in the past few years more and more claims of battery and negligence in infecting another individual with a sexually transmissible disease have come to light. According to the Center for Disease Control’s “STD Trends Fact Sheet,” the CDC estimates “nearly 20 million new sexually transmitted infections occur every year in this country, half among young people ages 15-24.”

On April 1, 2015, the 4th District Court of Appeal issued a decision in Lopez v. Clarke, “a tale of two lovers.” Monica Lopez sued John Clarke claiming that he gave her genital herpes, that he concealed he had an STD and now she suffers because of the disease. “Both denied having the virus prior to their relationship. Both said they were faithful to each other. Both suffered gential herpes outbreaks – Lopez in February, 2005 and Clarke a few months later.” At trial, a jury found in favor of Ms. Lopez on a claim of “fraudulent concealment” in the amount of $12,500.

The 4th DCA explained that “an overwhelming majority of states have permitted plaintiffs in tortious transmission of STD cases to pursue recovery based on misrepresentation and fraud.”  While there are no Florida Supreme Court cases allowing such recovery in Florida, the 5th DCA ruled in Hogan v. Tavzel, 660 So. 2d 350 (Fla. 5th DCA 1995), that a count for fraudulent concealment of an STD was not barred by interspousal immunity. This could be interpreted to mean that given the right facts and circumstances, a claim of fraudulent concealment of an STD can be a valid action.

Fraudulent concealment of a sexually transmissible disease requires, the defendant with knowledge of his medical condition intentionally failed to disclose to the plaintiff that he carries the disease. In essence there are four elements one should consider: (1) person had an STD; (2) person knew they had an STD; (3) person intentionally failed to disclose the STD or misrepresented the STD; and (4) injured party contracted the STD.

In the case of Lopez, at trial two expert doctors were brought to testify regarding STDs and any potential knowledge Mr. Clarke may have had prior to their sexual relationship. The crux of the case turned on prior outbreaks and testing. Mr. Clarke had previously been tested for STDs, including herpes, and was told he was negative for herpes type 2 (even though his former wife contracted genital herpes nearly 15 years prior). The 4th DCA held that Mr. Clarke did not have the requisite knowledge of having any STDs, thus he lacked the intent/state of mind to conceal it from Ms. Lopez. Because of that evidence, the Court reversed the $12,000 verdict and remanded to enter a verdict in favor of Mr. Clarke, i.e. $0 money damages.

It is important that if you are sexually active, you are tested for STDS and be open and honest with any partner you plan on engaging in sexual activity with. However, if you contract an STD from a partner or former partner, it is important you understand the legal rights you may have. Please contact an attorney at Wooten Kimbrough if you feel you are victim to getting an STD.



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