specially concurring:
Doe, while performing her duties as a prison guard, was bitten by an inmate. The inmate’s action must be termed wrongful and most likely illegal. Today, HIV and the resulting disease of AIDS are legitimate fears. The victim of one who might have the virus, injured in a way that might well transmit the virus, should have recourse to test results which either negates the fear or warns the victim to seek the best medical treatment possible.
Here, a test was made — and Doe questioned the testing process. The trial court found that a reasonable question arose concerning the testing procedure, and it ordered retesting. If a reasonable question exists as to the method of testing, is it unreasonable to order retesting? I, as well as the author of the majority opinion, find the order of retesting reasonable. We recognize that the trial court’s decision regarding the first testing procedure should not be reversed unless against the manifest weight of the evidence.
As far as I am concerned, the trial court’s order, and the majority of this decision of our court, would be the same whether the employer of the victim of wrongdoing was IDOC or any other governmental or nongovernmental entity. This case has nothing to do with the operation of a place of incarceration; it involves proper information to a victim of a wrongdoing.
IDOC is here because plaintiff (the victim) cannot require the blood testing of the wrongdoer without assistance of the IDOC. The trial court is not telling IDOC how to run its prisons — it is telling IDOC that the wrongdoer is to be tested with the use of a reasonable procedure. If the wrongdoer had not been incarcerated, the testing should still have been ordered.
The dissenter evidently believes IDOC has some special status which prevents any judicial interference. He appears to be saying that even if the trial court was justified in finding a question arose regarding the testing procedure, that court could not order the testing. If the trial judge’s conclusion is correct, then I suggest IDOC could have refused to give the first test without fear of outside intervention. While I respect the necessity of IDOC’s relatively unfettered control of its institutions, I will not concur in depriving the plaintiff employee of the relief ordered by the circuit court.