A person who had tested positive for HIV, the virus that causes AIDS, was at a hospital for further tests and discussion with a doctor. The patient did not have the disease of AIDS, only the HIV virus in his body. When the patient entered the hospital examination room, where normally only the patient and physician would be present, he was asked if he would allow his photograph to be taken. At first, he refused. But the photographer and physician assured him that he would not be recognized because the photo would be taken from a back angle and in silhouette. No one said who the photographer was, but the patient assumed she was with the hospital and that the photo would be used for research purposes within the hospital. The patient agreed to allow the picture to be taken. In fact, however,

Question

the photographer was from the local paper that published the photo of the patient being examined by the doctor to illustrate a story that discussed the hospital’s research on people who have the AIDS disease. The patient could be identified in the photo by a number of his friends, and he was terribly upset by his picture being used with the story. The patient wants to sue the newspaper for negligent infliction of emotional distress. Would that suit be successful? Why or why not?

What will be an ideal response?

Answer 1

Suing for negligent infliction of emotional distress, the patient would argue that the newspaper had a duty not to use the picture to illustrate a story on AIDS, because the patient did not have that disease. The patient would argue the newspaper breached its duty and caused the patient severe emotional distress. The newspaper would argue that it did not have a duty to the patient. A court might rule either way. A court could rule that the paper did know who the patient was, so did have a duty to the patient. Or the court could rule that this case would be no different than a car accident victim claiming emotional distress when the victim’s picture is published in the paper. That is, newsworthiness overcomes duty.