Justice at last for man given wrong HIV test results

The High Court will this week start assessing what damages to award a man who was misdiagnosed with HIV by a clinic, something that could cement fears that many Kenyans could have been given false test results.

In a ruling, Justice John Mwera found the clinic operated in Nairobi by the Seventh Day Adventist Church liable for giving false HIV test results to Joseph, and he ended up #suffering prejudice and losing a job".

Justice Mwera relied heavily on a report by the Kenya Medical Practitioners and Dentists Board (KMPDB) which had declared the clinic negligent in giving false diagnosis.

On Wednesday the court is expected to mark the beginning of an end to an eight-year legal tussle during which Joseph turned into a virtual outcast and went to the brink of alcoholism.

Joseph got a new lease on life after multiple tests - that came months after the first wrong diagnosis - showed that he was HIV-negative.

Joseph dropped out of university but has since gone back. He therefore asked the Sunday Nation not to publish his second name for fear that it might occasion another round of stigma.

Insurer's conditions

How did it all start?

Joseph, 31, had been a regular VCT visitor. In early 2004, he secured a job and had to take a HIV rest before he could be incorporated into the company's health insurance scheme.

His father recommended the SDA Health Services clinic opposite Integrity Centre at Milimani, Nairobi. His father then dropped him off en route to work.

After a chat with the then medical director at the facility, several tests were conducted, including one for HIV.

No pre-test counselling was offered, Joseph says, and he was advised to pick up the results after two days.

Upon return, the doctor told him he had dispatched a copy of the results to his employer, and he was handed his.

Joseph was told that he was HIV-positive.

But the sudden turn of events did not stop him from reporting to work the following day, but a few weeks later things turned bad.

"I noticed that the attitude of my workmates towards me had changed, especially those working in the Human Resources and Accounts departments who had access to my results," he said.

By April that year when he ought to have completed his probation period, news of his HIV status was spreading across the company like wildfire. Joseph threw in the towel and went into denial.

"I had not only failed myself but also my then girlfriend and family," he says.

Confused, he could not break the news to his family or his girlfriend. Bit he stopped having sex with her. In no time, she started accusing him of being promiscuous.

"I decided to break the news to her," he says. "We later went to a VCT centre, and she tested negative. She walked out of the relationship."

Reckless behaviour

A dejected Joseph sought solace in alcohol. Luckily, he was aware of the different strains of the virus and thus did not engage in reckless sexual behaviour.

In September 2004, he coincidentally developed acute tuberculosis which to him was a confirmation that he had contracted HIV. He was, however, reluctant to start the anti-retroviral treatment.

This time, his mother, unaware of his HIV test results, drove him to the Nairobi Women's Hospital for TB treatment.

"I was seen by a nurse who said they could not treat me for TB without a HIV test, but she advised me to take the test 'just for the sake'," says Joseph. "She insisted even after I confided in her I was positive. I obliged."

The results were out the following day, and he had tested negative. "I could not believe my ears."

He did not want to have any false hopes so he took a confirmation test before breaking the "to-hell-and-back news" to his family.

The confirmatory test took another day and returned a negative result.

"For a moment, I thought I was in dreamland or watching a movie with a happy ending," he recalls.

His family, too, could hardly believe how much anguish he had silently borne. Armed with the results, he went to the doctor at the SDA clinic to inform him he had erred, but the doctor was adamant that his results were accurate.

Joseph reported the matter to the KMPDB, who had him take HIV tests at various health facilities, including at the Kenya Medical Research Institute (Kemri). After four years, the board ruled that both the doctor and the SDA facility were negligent.

In a letter dated February 20, 2009, the KMPDB chief executive Daniel Yumbya said a preliminary inquiry committee established the doctor had taken out a private licence.

"The committee adopted the report of the Kenya Medical Laboratory Technicians and Technologists Board that the facility had no capacity to perform HIV testing, had no licence from the board and was not licenced or accredited and or approved by the KMLTTB," Dr Yumbya said.

The board further noted that the doctor and the institution had made an offer of amends to Joseph which was not honoured.

After seeking legal counsel, Joseph sued the facility in 2012, asking the court to rule on whether it was liable based on the KMPDB report (without necessarily having a full trial).

In his ruling, Justice Mwera upheld the board's verdict and set September 26, 2012 as the date when the damages will be awarded.

"The defendant denied all the claims put up by the plaintiff in rather a plain and vague manner as opposed to the plaintiff's specific averments," the judge ruled.

Proceed expeditiously

"The Medical Board report, which was not appealed against or put on review, is clear on its findings in this respect. To have litigation proceed expeditiously this court considers the issue of liability against the defendants disposed of," he added.

Three years ago, there was uproar after a study established that some of the results issued by some VCT centres in Kenya were false due to faulty rapid tests.

The study involving 6,255 people in Kenya and Uganda established that the three commonly used HIV rapid tests, Determine, Bioline and Uni-Gold, did not correctly identify the virus in a single test. The first two are usually used as first-line tests while Uni-Gold is confirmatory.