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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
is not dispositive of the HIV-status of the bitten person, petitioner argued the intrusion was unjustified. This issue was a major topic of the remand hearing, although we did not ask the trial court for a specific ruling thereon.
Respondent court considered numerous additional declarations, medical articles, and a publication of the United States Department of Health and Human Services' Center for Disease Control. Real party presented numerous declarations of AIDS experts who significantly differed from petitioner's experts in some respects. An illustrative declaration is that of Dr. William Drew, M.D. In Dr. Drew's expert opinion, "based on currently available information, the risk of transmission of HIV from an infected person to another though a bite is extremely low. HIV can only be detected in the saliva of some infected persons and even then it is barely detectable. Given the infrequency of its occurrence in saliva, and given the studies of saliva transmission done to date, it must be concluded that the risk of transmission is remote. [para.] When HIV-infected saliva comes into contact with intact skin, there is no basis for concluding that the saliva could transmit the virus. However, when HIV infected saliva comes into contact with subcutaneous tissue and/or the blood of another, it cannot be said categorically that HIV could not be transmitted. . . . ransmission of HIV could occur. While the risk is exceedingly low, one cannot say that transmission of HIV in this situation could not occur." (Italics added.)
In Dr. Drew's opinion the risk of HIV saliva transfer cannot be discounted completely because of the uncertain state of medical knowledge concerning HIV and AIDS: many of the "issues relating to this disease are matters
of continuing inquiry." "Because the disease is lethal, we should err on the side of caution until we have enough evidence to demonstrate that no cause for concern exists. I am unaware of any documented case of transmission by saliva. However, . . ., the evidence is not yet sufficient to enable the medical community to conclude that there is absolutely no cause for concern."
In addition to viewing the theoretical risk of infection in a more cautionary light, the doctor believed there was considerable medical utility in a test of the biter's blood, even if the test is not dispositive. Patients who fear an HIV infection "suffer extreme anxiety because AIDS is fatal. . . . eing informed the risk [of infection] is remote provides little comfort in the face of a lethal disease. Patients are anxious to know the HIV status of the person with whom they have come into contact. This information is useful for both the treating physician and the patient. A positive test of the person who may have infected the patient would inform the physician that additional and more extensive monitoring of the patient's medical condition is warranted than would be the case were the results of the test negative. If the results of the HIV test of the source is negative, this information may be useful in helping to allay the concerns of the patient. [Italics added.]
"The results of the blood test are not dispositive. The source of the infection may produce a negative test result for HIV, but may nonetheless be infected. This is because it is possible that the source had been infected but at the time of the test had not yet produced antibodies to the virus. Thus the source could test negative but nonetheless have been capable of transmitting the virus. While not dispositive, the information is nonetheless useful in helping the physician and patient assess the risk of infection. A negative test, even though not dispositive, can nonetheless be of great as
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