Negligent Transmission Of Sexually Transmitted Diseases
In October 2014 Florida’s Fourth District Court of Appeal decided a case that should be mandatory reading for all sexually active adults. In Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014) the Court addressed for the first time in Florida whether a party (here the former wife) could state a cause of action for negligent transmission of a sexually transmissible disease based on ordinary negligence principles. Florida like a majority of states has long-recognized a cause of action for negligent transmission of an STD. However, before Kohl was decided, in order to state a cause of action for negligent transmission of the disease, the party had to track the language of Florida Statute §384.24, a criminal statute which makes it a first-degree misdemeanor to “knowingly transmit” an STD. See Gabriel v. Tripp, 576 So.2d 404 (Fla. 2d DCA 1991) (plaintiff required to plead that the defendant had “actual knowledge” that he/she was infected; that the defendant was told by his/her doctor that the disease could be transmitted through sexual intercourse; and, that the defendant had sexual intercourse with the plaintiff without informing the plaintiff of the presence of the disease and without securing the plaintiff’s consent to sexual intercourse under such circumstances.
With one huge exception (explained below) Kohl changes this statutory pleading standard and puts Florida in camp with most other states in allowing the aggrieved party to establish their case using ordinary negligence principles. Under ordinary negligence principles a plaintiff can make out a prima facie case of negligence by pleading and proving either “actual knowledge” of the condition, or, “constructive knowledge” of the condition. In an STD case, actual knowledge can be established by evidence that the defendant was formally diagnosed with the STD by a medical professional. “Constructive knowledge” on the other hand, can be shown by “the existence of obvious symptoms – such as rashes, genital warts, or discharge” or has sought medical advice concerning such symptoms. Kohl at 136. Note though that in Kohl the Court rejected the wife’s claim that her ex-husband had constructive knowledge of his STD simply because he had “engaged in extra-marital affairs and hired multiple prostitutes and escorts during the course of their marriage” and that [another] ex-wife had undergone a hysterectomy.” Thus the Court rejected the notion that “high-risk” behavior alone could suffice to prove constructive knowledge of an STD.
A greater obstacle for Mrs. Kohl and the reason for the exception carved out by the Court in that case is the situation where the defendant – like Mr. Kohl – had never been diagnosed with an STD and had never had obvious symptoms of an STD such as rashes, genital warts or discharge. After undergoing a routine PAP smear Mrs. Kohl was diagnosed with of the” human papillomavirus.” The HPV according to Centers for Disease Control statistics cited by the Court is the most commonly transmitted sexually transmitted disease in the United States. Apparently, because the disease can lay dormant for years if not decades most people are unaware that they harbor the disease. Therefore, the Kohl court held that in cases where the plaintiff claims that he or she was negligently infected with the HPV the plaintiff cannot rely on “constructive knowledge” of the disease to prove their case. Instead, the plaintiff must plead and prove that the defendant has “actual knowledge” that the defendant harbors the HPV before any liability will be imposed.
In cases where by nature of the diseases symptoms are present, negligent transmission of the disease may be proved by either actual or constructive notice.