JUDGE REFUSES LAWSUIT ON POST-AIDS TEST SUICIDE

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, January 13, 1993                   TAG: 9301130326
SECTION: VIRGINIA                    PAGE: A9   EDITION: METRO  
SOURCE: PAUL DELLINGER STAFF WRITER
DATELINE: MARION                                LENGTH: Medium
JUDGE REFUSES LAWSUIT ON POST-AIDS TEST SUICIDE
A circuit judge ruled Tuesday that a lawsuit over the suicide of a man who believed he had AIDS was without merit, but said he would allow an amended suit to be refiled.
During a demurrer court hearing Tuesday, it came out that Christopher Steven Yarber, 21, of Glade Spring, never was notified of the results of his HIV test because the courier for a drug company misplaced it after all the medical material was gathered.
Yarber did not have the virus leading to AIDS but apparently thought he did when he shot and killed himself on Sept. 7, 1990. His parents were suing for $3 million for financial loss and mental anguish.
They wanted $1 million each from Smyth County Community Hospital and two doctors who were on duty when Yarber came to the hospital emergency room July 22, 1990, and asked to be tested for the HIV virus.
The parents were not in court for the hearing. Their attorney, John Lamie of Abingdon, said he would have to confer with them before deciding whether to refile. He said he could make the suit more specific, if that was what the judge wanted.
Circuit Judge C.B. Flannagan said the suit was insufficient to go to a jury on the allegation that the hospital and doctors had failed to carry out their required duties in notifying Yarber of his test results.
Lamie had argued that the defendants failed to provide counseling or face-to-face disclosure of Yarber's tests results as required by law in AIDS cases.
William Eskridge of Abingdon, the attorney for the hospital, said it is reasonable to assume that those requirements exist only in cases where someone has tested positive for the AIDS virus. "We think that this statute, which is at the heart of the case, doesn't mean what the plaintiff thinks it means," he said.
Eskridge said the case has been difficult for the hospital and doctors because they believe they followed proper procedures but are unable to give their side of the case because of the suit. "We haven't had our say yet," he said. "We think the statute was complied with."
"You have to have a result before you kick into that counseling argument," agreed John Jessee of Roanoke, representing Drs. Gary Fairchild and James Patterson.
Eskridge also argued that Virginia law does not allow an estate to recover damages when a person commits suicide, because suicide is a crime. He said Yarber, in assuming that he had AIDS based only on that he had not been notified otherwise, was at least guilty of contributory negligence.
Jessee said the plaintiff's assumption would logically mean that people with terminal cancer or heart disease would have the right to take their lives.
Flannagan sustained the defense motion that the act of suicide ruled out the estate's recovering damages.
He did not rule on whether the two-year statute of limitations for such a suit had taken effect. He deferred that ruling until the plaintiffs decide whether to file a revised suit, and gave them 14 days to make that decision.
The three attorneys agreed that the case had gotten more publicity than it warranted because it involved AIDS. "It's turned a family tragedy into headline news and that shouldn't be the case," Jessee said.
If an amended suit is filed, Flannagan said, he would not allow an amendment sought to the original suit on Tuesday. That suit had stated that Yarber was in good health.
The defense attorneys said Lamie wanted to change that only because he found such a claim would work against the success of the suit. Lamie said it was because Yarber's behavior changed in several ways after he took the HIV test.
Lamie said Yarber had never been particularly religious, but joined a church, got saved and began carrying a Bible everywhere with him, even to work.
Eskridge told the judge he was surprised to hear "that getting religion makes you of unsound mind."
"I'm not going to touch that," Flannagan said.
Memo: ***CORRECTION***

by Bhavesh Jinadra by CNB