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W.V. FIGHTS BACK ON HIV-TEST LAWSUIT

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Lawyers for West Valley police hope to win a potentially costly lawsuit even though a federal appeals court ruled that the police violated a man's privacy by revealing the results of the man's inaccurate HIV test.

The 10th Circuit Court of Appeals ruling revived an anonymous man's suit against the city, which had been dismissed by a federal judge here because the HIV test turned out to be wrong. The city's next move: Ask the man to prove that the false test was really his.The city agrees that the man has a right to the privacy of an erroneous test result if the test result is his, said Andrew Morse, attorney for West Valley City. But if the test result isn't real or isn't his result, he has no right to sue the city, Morse said.

The appeals court ruled that people have a right to have their medical records kept private even if those records are inaccurate. U.S. District Judge Bruce Jenkins had dismissed the suit, ruling that the right to privacy does not apply to inaccurate medical records.

The man, identified only as A.L.A., wants a hefty sum from West Valley City because two of the city's officers told several people he had AIDS. The man was arrested several years ago in Valley Fair Mall for passing bad checks. Searching the man after the arrest, the two officers found the test result in the man's pocket. They told people standing nearby that the man had AIDS. Later, the officers told the man's sister the same thing, according to the man's 1990 lawsuit.

Because of the officers' remarks, the man's friends and family have spurned him, said John Pace, attorney for A.L.A. Some friends and roommates wouldn't touch his possessions and some family members refused to answer his letters, Pace said.

A.L.A. wants "several hundreds of thousands of dollars," for his suffering, Pace said. He wouldn't name a specific amount. "How do you put a price on the psychological damage he suffered? How do you put a money figure on being forsaken by loved ones and friends in a real time of need?" Pace asked.

Pace scoffed at the city's plan to ask for proof that the test was A.L.A.'s. "Unless they come up with a new angle, I'd say they are treading on pretty thin ice. He has already said under oath that it is his test. If they want to go to trial and ask a judge or jury to decide if he's telling the truth, we welcome the opportunity." But the city can't ask the judge to dismiss the case when A.L.A. has already testified that the test is his, Pace said.

Morse is still skeptical. "We think this supposed test result is as phony as the I.D. he used to pass bad checks," Morse said.

A.L.A. says he got the 1989 test result in Florida, Morse said. Florida checks all blood that tests positive for HIV three times to make certain the result is accurate, Morse said. The state also keeps track of all test results, the notification of those who tested positive and the counseling they received. "They keep it in one computer bank with two backup systems," Morse said. Yet the state has no record of A.L.A.'s 1989 HIV test.

In order to be real, the false result would have had to survive three tests and then Florida would have to lose all record of it. "So you have a real question of whether or not this was a real test result," Morse said.

Carrying a false test result can pay off for some people, Morse said. "If you are HIV positive you get social services. You get sympathy. You get counseling. There's also the survivor's syndrome. Some HIV negative gay men feel guilty because their friends have suffered and died and they haven't. So some of them have compensated by saying, `I'm one of you.' " A false test result serves that purpose.

The city can't check A.L.A.'s test result against Florida records because A.L.A. says he has lost the test result, Morse said. "So we can't send it to Florida and say, `Is this yours?' "

While West Valley City has been researching Florida's test procedures, Pace has been sending periodic letters to the city offering to settle the case out of court.

So far, his letters have been ignored, he said.

A.L.A. was incarcerated in the Utah State Prison for a short time after he was arrested at the mall. Two tests performed while he was in prison showed that A.L.A. did not have HIV. A.L.A. is currently working in the Salt Lake area, Pace said.