Why Don't People Who Test False Positive Sue?

Dear Christine,

From the information Iíve read, providing itís correct, there must be a huge number of people who test false positive. If HIV tests are so inaccurate, how come people who get positive results and are perfectly healthy arenít engaging in major lawsuits?

Jason

Dear Jason,

From what I know of legal cases involving controversial issues relating to HIV and AIDS, courts tend to side with the preponderance of medical opinion rather than considering evidence that might dispel accepted views. In some cases, judges have refused to allow testimony or admission of documentary evidence that challenges core beliefs about HIV and AIDS.

Law suits over HIV tests would be more likely if such action were had consumer or medical associations advocates. Unfortunately, the vast majority of health professionals, human rights groups and public protection agencies adhere to the popular position that HIV tests are accurate and reliable. Most would never imagine that HIV tests are actually unvalidated, non-specific and that their intended FDA approved use does not include the diagnosis of HIV infection. From the AMA to the ACLU, everyone seems to have accepted without question the misguided notions that positive antibody response accurately indicates infection with HIV and that viral load tests detect the actual virus.

The biggest difficulty in suing for false positive results is how one proves a false positive since there is no test or standard that establishes a true positive. For all HIV science can tell us, every HIV positive result may well be false. While most people think of "false positive" as a one-time occurrence thatís eventually corrected by further testing, this is not necessarily the case. People are "false positive" when antibodies to microbes other than HIV register positively on the tests. Because of the potential for non-HIV antibody response to the alleged HIV proteins used in test kits, people may test positive repeatedly even though they have never been exposed to HIV.

With courts reluctant to hear challenges to popular opinion, and many judges focused on career advancement rather than serving the public good, and with no medical standard for a true positive and no regulatory agency or professional association aware of the facts, law suits for false positives face tremendous obstacles.

Despite these difficulties, I think a skilled attorney armed with the right evidence, expert witnesses and plaintiff could bring the whole HIV testing system down. Our Alive & Well emailer for June 2004 features news on a law suit against HIV test makers by Kim Bannon of Wichita, Kansas. Kim was diagnosed positive in 1992 and told she would develop AIDS and die within a few years. Instead, sheís remained perfectly healthy without the use of AIDS medications. Once she discovered her HIV diagnosis was based on unvalidated tests not approved for that purpose, she searched for an attorney to take her case. It will be interesting to see what happens in court and how the media will report on this issue.

There have been a few lawsuits brought by people who experienced HIV tests that were positive once or twice and negative thereafter. From what I understand, all settled out of court. CNN's "America's Edge" did a segment on this topic several years ago. You might still find transcripts on the CNN web site if youíd like to know more.

Thanks for the thought provoking question,

Christine

HIV Antibody Test Certificate of Accuracy

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References

to Questioning The Test FAQ's - Why Talk About Tests If HIV Doesn't Cause AIDS?

to T Cells and Viral Load