Jury Rules Against AIDS Patient : Medicine: Panel finds that she hid her condition from a technician who was cut accidentally by a scalpel while treating her. The health care worker is awarded $102,500

An AIDS patient committed fraud when she hid her condition from a health care professional treating her, a Los Angeles jury decided Tuesday in a lawsuit brought by a medical technician who was accidentally cut by a scalpel.

The Superior Court jury awarded surgical worker Diane Boulais $102,500 in her case against Jan Lustig, a former Westside psychologist whose AIDS was diagnosed in 1987 but who failed to disclose that when she had breast reduction surgery in 1991.

In contrast to recent highly publicized moves to force doctors and other health care workers to disclose their AIDS status to patients, this case was believed to be the first of its kind in which a health care professional sued a patient for the same reason.

“It’s a message I believe will help all health care workers,” said Boulais, 40, after the panel delivered its verdict in the five-week trial. Lustig, 46, who now lives in Washington state, was not in court.

Boulais has not contracted the AIDS virus, according to numerous tests since she was cut.

Boulais’ attorney, Rex Beaber, called the verdict a signal of “what is morally proper.” But Lustig’s lawyer, Evan Wolfson, said the judgment “sends a terrible message to the health care system, which is based on the idea that doctors have to treat every patient as if infected.”

The case will be appealed, Wolfson said.

Lustig’s defense centered on the failure of the Breast Center in Van Nuys to use minimum precautions for handling patients, such as wearing gloves, which were called for in 1987 federal guidelines issued to guard against transmitting infections. Boulais was not wearing gloves when she was cut as she helped Dr. Neal Handel remove a suture from one of Lustig’s breasts.

The jury partially agreed with this defense. They awarded Boulais $100,000 in compensatory damages against Lustig for fraud, and $2,500 in punitive damages. But as part of their finding for negligent infliction of emotional distress, they divided the blame for what had happened by apportioning 60% to Lustig, 39% to Handel and the clinic and 1% to Boulais.

“There was good evidence that Dr. Handel and the Breast Center did not practice universal precautions,” said juror Curt Cotter, a personnel specialist from Santa Monica.

But the overriding issue that swayed the jury during three days of deliberation was lack of disclosure, said Susan Heine, a sales representative from Glendale. “There was a message we wanted to send to people that you can’t do what this defendant did: misrepresenting her health status so that somebody else’s life was endangered. That just cannot be tolerated.”

The small punitive damage award, Heine said, was out of “consideration of the defendant’s status.”

Lustig had a successful practice but gave it up after she learned of her condition. She then had facial cosmetic surgery as well as the breast reduction. During the trial, she testified that she wanted to be the “best person” she could in the time left to her and that the surgeries were among several actions she took to “thumb my nose at the virus.”

The type of surgery sought did not sway the panel against Lustig, said juror Lynn Tolito, a legal secretary from Sherman Oaks. “Everybody has the right to what surgery they want. She still had a duty to tell.”

Mark Senak, deputy director of AIDS Project Los Angeles, called the verdict “one more baseball bat” waiting to hit those who test HIV-postive, and said it might encourage people to avoid seeking testing. “The more liability you attach to the idea of testing, the less likely a person is to come forward to be tested,” he said. “The HIV test does not occur in a vacuum. It has social ramifications, insurance ramifications. What this jury did was attach another ramification--I might be liable if I go to my doctor.”

Boulais, who said she has not worked in several months because of stress, worries that she could still be infected with the virus because “they talk about a span of years.” She is not sure she will return to her job at the Breast Center for fear of another surgical accident, she said. But she added: “Hopefully, after this my life will get back to normal.”