By James Fanelli, DNAinfo Reporter/Producer
NEW YORK CITY — A Harlem woman who didn't want to know whether she had contracted HIV is suing her doctor for breaking the news that she tested positive for the deadly virus.
The 31-year-old woman claims Dr. Pavel Yutsis violated state law by testing her without her consent and then delivering the devastating results — even though the revelation likely benefited her health.
"I was tricked. I never signed any paper," the woman, who filed her lawsuit as "Jane Doe" to protect her privacy, told DNAinfo.com last week. "It was a slap in the face."
Jane Doe became a patient of Yutsis during the summer of 2011, according to the lawsuit filed last month in Brooklyn Supreme Court. She had been recovering from recent gastric-bypass surgery when a nutritionist recommended she go to Yutsis's Sheepshead Bay clinic, Lifex Medical Care, for treatment of a Vitamin B12 deficiency.
After a number of visits, the woman still showed a shortage of white blood cells and low levels of B12, which helps in the proper formation of red blood cells. Yutsis suggested she take an HIV test, but she declined, explaining she was only focused on healing from her surgery, the lawsuit says.
"I wasn't really concerned about anything else," she told DNAinfo.com New York, noting she already had a primary care physician.
On Sept. 9, 2011, a Yutsis assistant told Jane Doe that she needed to draw more blood for testing. She assumed it was to see if the treatment had worked and "was unaware that her blood was going to be tested for HIV," the lawsuit says.
"She was never asked to sign a form consenting to the test and was not given counseling to prepare her for the administration of an HIV test," the lawsuit says.
On Sept. 22, during another visit, Jane Doe claims Yutsis told her she tested positive for HIV, the virus that leads to AIDS. The results — and how they were collected — dumbfounded her.
"My body got numb. I was not good after that," the woman said. "I was tricked with something I had no clue about."
As she left Yutsis' office, she also learned the results were not kept confidential, the lawsuit says. A group of employees had allegedly been chatting with her file open. One of them allegedly stopped the woman and tried to hearten her by noting that sometimes another HIV test shows the initial results were wrong.
New York's public health law requires the written consent of a patient before administering an HIV test. A doctor or health-care provider must also offer counseling, explaining to the patient, among other things, how HIV is contracted and how testing can be done anonymously. In revealing the results, the health-care provider must offer more counseling and referrals for emotional support and medical treatment, according to the law.
The law also requires the HIV-infected patient's name be placed on a state Health Department registry. When possible, partners of the infected person are notified, but the infected person's name is not disclosed.
Yutsis did not return a call or email for comment.
Jane Doe's lawyer, Daniel Pepitone, said he understands the health benefit of testing for the infection, but said Yutsis violated his client's right to choose.
"These are personal choices that the law has specifically carved out to make the specific decision," Pepitone said. "We're all aware of the value of finding out, but she has her own reasons. We need to protect her rights under the law."
Dr. Charles Camosy, an ethicist at Fordham University, said Jane Doe had every right to reject the test, noting Western medicine's shift away from "physician paternalism," in which the mindset used to be that the doctor knows best. Now the emphasis is on informed consent, with patients deciding what's best for themselves.
"There are considerations that are important for a patient to weigh that have nothing to do with medicine," Camosy said. He noted that in the Jane Doe case, it's possible "the stress in getting the test would be worse than not knowing."
"Maybe she'll have a nervous breakdown and not be able to function," he added. "That's not something the physician is prepared for."
Camosy acknowledged that the possible transmission of HIV to a partner complicates the situation, but said society doesn't mandate testing.
"If there is no law or regulation that the people already decided," he said, "then I still think the physician has no business doing it."
Jane Doe said she has since gone to another clinic, where she consented to an HIV test that was administered correctly.
The test also showed she is HIV positive.
When asked whether Yutsis's disclosure benefited her health, she simply said it wasn't his place to decide.
"That was a low blow," she said. "That was a sucker punch."
The woman was also vague about her current health.
"I'm working on things," she said, noting her gastric-bypass surgery has helped her lose a substantial amount of weight.
"I'm slim and trim and sexy," she said. "If I turn sideways, I'll be marked absent."
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