A 49-year-old woman in Oregon has been awarded $900,000 for the pain and suffering caused by an internet date who gave her genital herpes, or HSV-2. She alleges that after four dates, she slept with a 69-year-old retired dentist she met on eHarmony, insisting on the use of a condom – and that not only did he remove the condom during sex, but he didn’t inform her that he had herpes until afterward.
The plaintiff broke off the relationship, but within 11 days experienced a herpes outbreak. After repeated, painful outbreaks, she spiraled into a depression. Anti-viral medications to control the disease caused large patches of her hair to fall out and she gained 30 lbs after taking antidepressants.
The dentist, for his part, took the stand to explain that he was unaware he could be contagious when he wasn’t having an active outbreak. He also testified that he told her about his herpes because he liked her and wanted to continue seeing her, and felt he should let her know there would be times when they couldn’t safely have sex. Not content to allow his client to appear misinformed and apologetic, the dentist’s lawyer argued she could have contracted the disease from anyone and slammed her for not noticing her partner had removed the condom, calling her negligent. (I have a feeling the lawyer’s attitude may have had something to do with the size of the settlement.)
There are those who argue that this verdict sets a dangerous precedent – herpes blood testing is generally excluded from STD panels unless a patient is showing active symptoms of the disease, so many people can spread herpes without even knowing that they have it, even if they are routinely tested for STDs. People who have an asymptomatic herpes infection can be just as infectious as those who experience outbreaks. Condoms don’t adequately protect from HSV transmission, because any skin-to-skin contact can spread the virus. (Condoms are still effective in preventing most other STDs, however.)
While it seems fair to punish someone intentionally transmitting an STD, things become murkier when you look at the statistics for HSV infection. Most people don’t realize that their doctors won’t test them for herpes unless they specifically request the blood test. Should people who unintentionally spread herpes also be held legally liable by their former partners?
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