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Benton v. Kaiser Permanente

Lynn McPherson, class representative against Kaiser Permanent for illegal HIV testing.

Lynn McPherson, class representative against Kaiser Permanent for illegal HIV testing.

(August 2014) A $4 million settlement of a class action for the reckless violation of patient rights in testing for HIV without patient knowledge or consent.

Privacy and freedom of choice are sacred commodities in a world that blurs these rights at the foot of governmental and corporate need. To get into a commercial plane, we voluntarily remove our shoes, belts, and possessions. We allow complete strangers to examine every crevice of our belongings. We raise our hands and let others view our naked bodies.

What if these same invasions were done without our knowledge, eliminating choice? Would we be as tolerant if agents crept into our homes, rummaged through our personal belongings, read our private diaries, and pulled back our covers to examine our bare bodies as we slept?

This class action against Kaiser Permanent was about a medical organization’s failure to protect privacy, its failure to respect autonomy and treat patients according to their preferences. At its heart, this case is about the value of choice. Between April 11, 2013 and May 6, 2013, Kaiser Permanent illegally tested thousands without their knowledge and consent. Washington law is crystal clear. No person may undergo HIV testing without consent. RCW 70.24.330. Any person ordering or prescribing an HIV test shall: (a) obtain the consent of the individual…; and (b) offer the individual the opportunity to ask questions and (c) notify the patient they have the right to decline testing. WAC 246-100-207. Assent can be inferred if the patient does not “opt out.” However, assent cannot be inferred if any of these three conditions precedent is deficient.

Thousands of members were HIV tested without their knowledge and consent, discovering the illegal intrusion only upon receiving the result when it arrived in the mail. This illegal testing was performed on a sitting judge, on state employees, on virtually every cross section of population aged 50 to 65 years old.

The seven-figure settlement was reached on behalf of the entire class.