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makanese

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makanese

will convince people not to get herpes screening

Just a fact guys, take it for what it is

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catiesmom

You realize by not defining what you have, you're setting yourself up for a lawsuit. You have reasonable cause to know what you have, you just failed to continue with the appropriate testing to confirm. Therefore, if you choose not to tell future partners, you could be sued because you SHOULD KNOW you have herpes.

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talesofagirl

Technically speaking, it doesn't matter whether you know or don't know if you have herpes. Lawsuits are about damages. You damage me; I want compensation. If I want to sue the person who gave me herpes (and no, I have no plans to), all I'd have to show was that he had it, I had no reason to believe he had it, I did not already have it, and he caused me damage.

It doesn't matter if he did or didn't know that he had it. That would be important for a criminal trial, not civil.

Intent does not matter in a civil trial. Intent matters in a criminal trial.

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catiesmom

My point was that if he chooses to remain ignorant about his diagnosis, he obviously can't warn his future partners. If he can't warn his future partners, he's setting himself up for the very situation you're describing.

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talesofagirl

Catiesmom, I wasn't really trying to dispute you. More him. He seems to think that if he doesn't KNOW, he's infalliable. You were saying that if he has cause to WONDER, he could be liable. I'm saying that even if he has NO IDEA, he is still liable.

Although, the fact that he has reason to believe he has it, if he doesn't tell a partner, would open him up to punitive damages. If he had no idea, and infected someone, he would still be liable for regular damages, but not likely punitive.

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justmyself

How can someone be sued when they don't know they have it? I don't know of any Judge that would find someone liable for damages if they could prove they had absolutely no idea they ever had this. I have worked in the legal field 20 years now. I am a legal secretary.

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sport45

Thought about it

I actually considered filing a suit against my ex-husband bc he knew he had it, he continued to sleep with the woman that gave it to him up until are wedding day then was generous enough to wait 2 weeks after we were married to start sleeping with again.

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talesofagirl
How can someone be sued when they don't know they have it? I don't know of any Judge that would find someone liable for damages if they could prove they had absolutely no idea they ever had this. I have worked in the legal field 20 years now. I am a legal secretary.

There are two types of damages, punitive damages and compensatory damages. For punitive damages, usually malice must be shown. (or sometimes even something like a reckless disgregard) So for herpes, for punitive damages, you would have to show the person knew they had it and knowingly put you in harm's way.

Compensatory damages are simply to make you "whole." Intent is not an issue here; the issue is whether or not someone harmed you and how it can be made up to you. It doesn't necessarily if they knew they had it--they caused you damage and now you need to be made "whole."

Compensatory damages should theoretically cover medical bills, diminished quality of life, etc. Punitive damages are just money--just to hurt the person who wronged you.

It might be difficult to get a jury to award, but there is no legal reason for someone to not be able to receive compensatory damages, even though the "gift-giver" did not know they had herpes.

And you want it that way. This is how you should want it. Because any other way provides a disincentive for an asymptomatic person to be tested. And you don't want that.

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Was23
Technically speaking, it doesn't matter whether you know or don't know if you have herpes. Lawsuits are about damages. You damage me; I want compensation. If I want to sue the person who gave me herpes (and no, I have no plans to), all I'd have to show was that he had it, I had no reason to believe he had it, I did not already have it, and he caused me damage.

It doesn't matter if he did or didn't know that he had it. That would be important for a criminal trial, not civil.

Intent does not matter in a civil trial. Intent matters in a criminal trial.

You are so completely, utterly, astoundingly ignorant about the law that it is not even funny.

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Was23
There are two types of damages, punitive damages and compensatory damages. For punitive damages, usually malice must be shown. (or sometimes even something like a reckless disgregard) So for herpes, for punitive damages, you would have to show the person knew they had it and knowingly put you in harm's way.

Compensatory damages are simply to make you "whole." Intent is not an issue here; the issue is whether or not someone harmed you and how it can be made up to you. It doesn't necessarily if they knew they had it--they caused you damage and now you need to be made "whole."

Compensatory damages should theoretically cover medical bills, diminished quality of life, etc. Punitive damages are just money--just to hurt the person who wronged you.

It might be difficult to get a jury to award, but there is no legal reason for someone to not be able to receive compensatory damages, even though the "gift-giver" did not know they had herpes.

And you want it that way. This is how you should want it. Because any other way provides a disincentive for an asymptomatic person to be tested. And you don't want that.

Again: wrong wrong wrong. Just wrong. Absolutely incorrect. Maybe there is a tort where strict liability applies, but off the top of my head I don't recall learning about one. (Where do you get this ability to state your BS with such impressive conviction?).

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catiesmom

Was, try reading the legal forum. There's a lot of good information there.

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justmyself

http://www.medicinenet.com/script/main/art.asp?articlekey=51350

* * *

Why are civil cases involving STDs so difficult to litigate? Lawyers cite these reasons:

* * *

Missing symptoms: Men in particular are more likely to experience no obvious STD symptoms even though they are infected and contagious. Such "asymptomatic shedding" makes lawsuits more difficult by raising the question of whether or not someone can be found to be legally negligent if he unwittingly infects others.

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justmyself

Seems to be a lot of information stating that the person must have known they had it and not disclosed it. Sure, anyone can sue for ANYTHING, but winning is another story!

"You may be able to sue your ex-boyfriend civilly for battery if you can prove that 1) he knew he had herpes but didn't tell you;"

"You may also be able to sue for intentional or negligent infliction of emotional distress against him. In order to prove intentional infliction of emotional distress, you must show that: (1) the defendant must act intentionally or recklessly; "

http://www.justanswer.com/questions/273xs-exboyfriend-gave-herpes-sue

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tohealth
"To succeed, exposure must be willful and intentional — innocently infecting another will not satisfy this requirement."

http://www.foxnews.com/story/0,2933,290404,00.html

Sweetheart,

You are quite mistaken, and this article is quite mistaken. And by the way, you might try a news source that isn't obsessively addicted to "tort reform"---something that it absolutely does not even understand---for your "information" in the future.

The article is flat out junk for several reasons.

First, the law varies by state and the article makes no allowance for that.

2nd, you can sue in every state--and yes, WIN-- and the article doesn't acknowledge this fundamental fact.

3rd, the person writing has likely never sued, never represented a plaintiff in a case, and did not reference the LAW at all--the ONLY INFORMED WAY to talk about STD litigation.

The way to discuss the "likelihood of success in suing" is to DO CASE CITATIONS by jurisdiction and then UNPACK what the judge says and what the juries decided. SHE DIDN'T. Because SHE LIKELY CAN'T or likely ISN'T INTERESTED. She needs to cite the actual recognized, precedent case law on the books like we have done countless times in this forum over the years---SHE DIDN'T, and THAT is what will determine success in court. Her article is an opinion piece--it is NOT legal scholarship. Actual judicial decisions are the ONLY thing that matters, NOT her lousy article, and where they don't exist, a plaintiff's lawyer has no reason to fear being automatically struck down. They should be GLAD and venture forth.

She did what a lot of low intelligence FOX News opinion manufacturers do: she advanced her cause by screening out and ignoring the information that informs the cause.

Anybody who ventures forth to talk about legal cases without actually doing case citations and talking SPECIFICALLY about REAL COURT decisions is speculating or trying to sell you something. FOX sources are EXCELLENT at this.

Seems to be a lot of information stating that the person must have known they had it and not disclosed it. Sure, anyone can sue for ANYTHING, but winning is another story!

And of course the person NEED NOT HAVE KNOWN. Nothing could be further from the truth. If absolute knowledge was required under tort law, people would simply play dumb about everything and never be liable. They CAN'T---which is why that weirdo who keeps yakking that lawsuits will force people to not get tested is ignorant to the point of de facto retardation.

We've dealt with this.

The issue is what the defendant knew, HAD REASON TO KNOW OR SUSPECT, OR SHOULD HAVE KNOWN.

Conclusion---this article titled conveniently, "Lis and the Single Girl: The Lowdown on the Laws Behind STDs" is not only NOT any lowdown, it's not even BASIC INFORMATION.

NO MENTION of precedent

NO MENTION of damage awards from tens of thousands to several million dollars across jurisdictions

NO MENTION of SUCCESSFUL CASES WHERE THE DEFENDANT'S STD STATUS WAS NEVER EVEN CONFIRMED BY THE COURT, NEVERMIND BEING "KNOWN"

NO MENTION of STANDARD OF PROOF

IT'S JUNK.

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Comebackid

tohealth

LOVE your post! Thank you for setting the record straight . . . again and again. If they weren't so pathetic I might be amused at the posts that try to dissuade lawsuits for damages caused by STD transmission. And yes, Fox News sucks. Bigoted misinformed and wilfully ignorant sons of bitches. . .

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Angel Eyes

Talesofagirl, you are not making sense. Big words mean nothing misused.

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talesofagirl

Wow. I don't really come back to this site very often anymore, so I just now saw all of the stuff on this thread.

First, I think tohealth has done a great job responding to a lot of this, so thank you.

I don't really understand why so much venom has spewed my way, and I don't really care, either, but I will respond with this:

The majority of civil lawsuits involve negligence. Intent is not a necessary component in order to show negligence. Does it help? Sure. But there are ways to show negligence without proving that the defendant intended to harm you. Even if they claim they didn't know they were infected, of they really didn't know, there could be ways to show that a "reasonable person" would've taken more care.

What ways? Well, it depends on your individual circumstances. And it may be tricky, because they could argue that you were also negligent--for example, not insisting on condoms if you didn't (even though they're only 30% effective, it's something), not insisting on test results, etc.

But you may have circumstances where you could argue that they were negligent and you were not.

As far as strict liability...possibility, I suppose...tort law varies by the state, and like all laws, is open to interpretation. One way that laws are changed, or tweaked, is through litigation. Even "standard" strict liability cases (dog bites, for example) are interpreted in different ways by different states and probably also by different juries.

There might be potential for making herpes a strict liability issue. Diseases that are caused by environmental factors (workplace environment, factory spewing population near your home) often fall under strict liability, but we don't hear as much about them because it can be very hard to prove cause and effect.

That would be an issue here, too, because most people here would have a difficult time proving that one specific person gave them this disease, which I believe is required for strict liability. But I could see how, depending on the state law where you live, you might be able to make a case for strict liability. Additionally, there has been a movement for all stds to fall under strict liability, but I don't think it has gotten very far. Maybe yours would be the case that spurs it along...

The biggest hindrance to any civil suit is the defendant's ability to pay. Most people aren't rolling in cash, which is why most of us would have a hard time finding any lawyer to take our case. It's not worth the time and effort, even if you have a great case. If the person who infected you had a LOT of money, I'm sure a good lawyer would find a way to sue them. Good lawyers are very creative people.

I don't even know why anyone who's not attempting to sue right now is even arguing about this (including myself). If you already have one or more versions of it, and you know you do, then you should tell your partner. And if you only have one, and don't want to catch the other one, now you know to demand a test and make it an issue.

And if you don't have either, and you're on this forum, now you know to demand a test from any new partner.

If you want to try to sue, go for it. I wouldn't pay a lawyer upfront, unless you're just paying them for some advice, and suing on your own in small claims court. One thing most lawyers won't tell you--a lot of lawyers out there are not very bright. Some are incredible, and are part of groundbreaking decisions. Some are incompetent.

Angel or something or other said I didn't make any sense, and said something about me using "big words." Here's the thing--if you don't ask a question or point out a specific issue, there's nothing for me (or anyone on this forum) to respond to. So you probably won't get a response.

One more thing--there's a very interesting case out there...I saw it the other day...a plaintiff won an award against an HIV-positive defendant. The defendant knew they had HIV and didn't inform the plaintiff. The interesting thing--the plaintiff never caught HIV. But they won the case, anyway--the defendant was found negligent.

It's HIV, not herpes, but I still thought it was interesting.

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