dissenting:
The majority holds that because the plaintiff fraudulently altered her test results and because she or her husband released those altered results to a third party, who is not a defendant in this case, she waived the confidentiality protections afforded her under the Act. I disagree.
Courts should be particularly reluctant to find that a party waived the Act’s statutory privilege. See In re Marriage of Bonneau, 294 Ill. App. 3d 720, 729 (1998). The privilege of confidentiality is far too important to be brushed aside when, as the legislature has found, public health is served by facilitating the confidential use of tests designed to reveal HIV infection. 410 ILCS 305/2(3) (West 2000); see also Thiele v. Ortiz, 165 Ill. App. 3d 983, 993 (1988).
Although the plaintiff released her altered HIV information to Dr. Guillen, she did not lose her privilege of confidentiality to prevent third persons, such as the defendants in this case, from independently acquiring her HIV test information and disclosing her results. See Doe v. Chand, 335 Ill. App. 3d 809, 812 (2002) (the plaintiff disclosed to an acquaintance that the plaintiffs husband had given the plaintiff AIDS, but the health professional defendant was nevertheless liable for his numerous disclosures of the plaintiff’s condition). Following the majority’s logic, an individual who has tested positive for HIV but releases to her friends or to her family that she is not infected with the deadly virus has now lost her protections under the Act with respect to third persons who acquire and then release her actual test results. Such a result directly contravenes the purpose and language of the Act.
Allowing the release of the plaintiffs HIV information in this case erodes the express statutory exceptions contained in the Act (see Weast Construction Co. v. Industrial Comm’n, 102 Ill. 2d 337, 340 (1984) (the expression of certain exceptions in a statute will be construed as an exclusion of all others)) and results in opening a Pandora’s box of inquiry into whether one tested for HIV released the results, what he released, and to whom. However unsympathetic we are to this plaintiff, who allegedly doctored her own HIV test results to incite fear among hospital personnel, we must honor the purpose and language of the Act. The legislature has created the confidentiality protections as a matter of public policy, and the plaintiffs purported misuse of the privilege should not be deemed of greater importance to this court than the public policy.
The majority is attempting to legislate an application of the Act that the legislature neither wrote nor intended. I choose not to join the majority in this endeavor and respectfully dissent.