Class Action - Genital Herpes and STI Testing in Australia?

[CLF]

I think there is a massive class action waiting to happen but nobody will take on the medical or pharmaceutical fraternity. My story is embarrassing, but I don't believe it is my fault, or even the man who gave it to me. I found out a week ago that I have genital herpes (GH). This is a life sentence, there is no cure. The stigma attached to this is massive and I am worried now that I will never get married or have a permanent man in my life. Imagine before you get intimate with someone for the very first time, having to tell them "oh, by the way, I have GH. Any oral sex has to be with a condom/dental dam on, sex will always have to be with a condom and any contact at all down there has to be avoided or washed clean straight away." Yep, thats a real turn on and I'm sure will lead to a long lasting, loving relationship.

The stress and depression associated with this is extreme. But Doctors say herpes is a minor issue and doesn't require testing.

So, where do doctors come in? I say I don't blame the man who gave it to me because before I would have unprotected sex with my ex-partner, I insisted we both had to be tested. My sexual and general health is extremely important to me and he agreed without a problem. I asked my doctor for the 'full STI check' as did my ex. We both came back COMPLETELY CLEAR. On this basis I went ahead and had unprotected sex with him. We were only together a few months and had just broken up when I had the first outbreak of herpes, but it just felt like a small sore down there and I didn't worry about it. Unfortunately I kept getting the outbreaks each month. When I went to the Doctor and presented with symptoms, she informed me "No, herpes is not included on the general STI testing." And this is why I now have GH.

So why isn't herpes included in the STI check? The blood test for GH is there, it is accurate and it is the largest STI in society, and by not even testing for it, Doctors are allowing (encouraging?) it to be spread. The figures I have read vary widely, but the LOWEST estimates are that at least 30% (maybe up to 50%) of people have the HSV1 virus (cold sores and/or less severe kind of GH), and that 12% (up to 20%) of people have the HSV2 virus (the more severe kind of GH). 1 in 5 people with the severe kind of GH. If you have had sex with more than 5 people, good chance at least one of them had it. And as it is spread from skin contact,not through body fluids, it doesn't even have to be direct sex - oral sex or even playing around in that area can spread it. This is not a druggo sharing needles or even unprotected sex issue - bodily fluids are not involved, the virus 'sheds' through the skin, and can be completely unnoticeable.

The test is imperative because most people with GH DONT KNOW THEY HAVE IT. I'm pretty sure my ex didn't know he had it. Anybody reading this may be shaking their heads at the silly girl who caught GH...and YOU may have it. "Oh, but I get tested" I hear you say....please refer above. Most people with it don't show any symptoms and may never know they have it. They go around, getting clear STI checks, and then spreading GH to everyone they sleep with. These are the very people that would probably refuse to ever be with me because I have this 'dirty' disease, and they can go merrily on their way spreading it to countless other people. Simply because I show the symptoms when most don't. Or, if I were morally bankrupt, I could just wait until the physical symptoms go away and then go spread it to any of my future partners.

The only way I could have prevented getting GH is if the STI check of my partner had shown up positive. For no good reason Doctors choose not to have herpes included on the "full" STI check. I believe it is because they (and the pharmaceutical companies) make too much money treating the symptoms of herpes, and as there is no cure yet, they would lose billions of dollars. They are also creating a massive market for whenever a cure is discovered. 20% (or even 50%) of Australia is around 5 million (13 million) people - big, but not that impressive on the larger scale. But the infected ratios are about the same in all developed countries, and worse in some. Hundreds of millions of people around the world, all being left to spread this disease in ignorance. Meaning that current 1 in 5 ratio is only increasing. Maybe they think it is easier to let the entire world be infected, and then it just becomes the status quo? It would definitely lose it's stigma then and I would just be 'normal'.

Think about it - a disease that is not life threatening, the majority of people carrying it show no signs, that is passed simply by skin contact (needs only the most minute scratch or skin break to enter), that has significant stigma attached so that people try to hide it, and that over 20% of the population already has. How do you control that? Has the CDC / Doctors just decided this problem is too big, too hard to control and has too much potential to lead to segregation if people with GH were all known?

Regardless of the why, I believe a class action is warranted. There would be thousands of people in my situation in Australia alone, who are only in this situation because they depended on the STI checks they get from Doctors. The blood test for herpes can easily be added to the usual STI testing - it is there, available and accurate. Doctors know this but they consider herpes a relatively minor problem (isn't life threatening and doesn't affect fertility - although there is apparently some risk of infection of the baby with HSV2 during child birth causing deaths) and they can't fix it anyway. I've also read they don't want to have to tell asymptomatic people who believe they are completely 'clean' that they actually aren't. I don't know why they don't include it - but I believe as the test is there and could be included, the fact that they don't makes them negligent and a large contributing factor to where I find myself.

Myself and thousands of others have been 'injured' for life due to Doctors not screening for HSV in the standard STI blood test, despite it being easily available, and yet not even a response. This is a personal injury issue. If there is some legal reason why it is ok for Doctors to ignore this issue and give people a life sentence with GH, please at least tell me that much.

 

[winston wolf]

I don't think this kind of action gets much air in Australia.
I understand your frustration and have read you post but forgive me if I miss a point in my reply as it was very long.

As I understand it you cant sue an industry of profession although possibly the labs that provided the test if it were promoted as a holistic STI test.
Then I assume the report states what has been tested for and the consumer should check if it covers their needs (I understand you are relying on you doctors for this).

Personally I think we may be better served if you lobby the AMA to promote awareness among GP's to suggest additional testing beyond blood tests when patients ask for STI tests.

Good luck

 

[John R]

Hi CLF,
Your question is one of the most interesting that I've read on the LawAnswers.com.au forums to date.

1. Class actions are (still) relatively difficult to start with in Australia and even the most basic personal injury claims require clear demonstration of negligence.
2. On this basis, have you questioned your doctor/GP to date as to why they didn't recommend a genital herpes test as part of the "full STI test" for you and/or your former partner? If yes, how did they respond?

 

[CLF]

Thanks Winston. While it won't help me, I agree that seems like a logical place to start to fix this issue. As a starting point, I think people should at least know whether they have it or not. While some may still ignore the positive result and keep spreading it, rather than tell new partners they have it, I'm sure some people would have a conscience and take precautions. PS - you don't get test results back now in paper or electronic form, and its a process to try and get them. All Dr's will do is ring you if something comes back positive i.e. if you don't hear back from them you assume everything is ok, or you can ring the practice to see if there is anything that needs followup (practice won't give any details over phone but will say if Dr has reviewed results and if any followup has been requested).

John R - I did ask my Dr. Firstly she said its because so many are HSV positive i.e. cold sores that its pretty irrelevant (I assume there must be a very basic HSV test that doesn't show type?), but when I asked about the blood test that can show whether its HSV1 or 2, she said they don't do that because its not on the standard STI lab list and it costs extra to do. I said that i'd never had a Dr ask me yet whether I wanted to pay extra to get tested for herpes as well, and if someone asked for a "Full" STI test, they probably expected that all the common STIs were already included. She kind of agreed but didn't seem to think it was a big issue just to test on presentation of symptoms. She said it was 'standard practice just to test on symptoms'. Next time I go to Dr I will press a bit harder. Particularly if she agrees that Drs not doing the test and not explaining the lack of herpes testing in the standard STI test was helping to spread the disease. I mean, its obvious that it is, but even if Dr's admit what they are doing is leading to people catching it, is there anything that can be done from there? Surely Drs must have some duty of care they are legally bound to?

 

[S Condrais]

CLF

Recently I found myself in a similar situation and am hoping to get in contact with you to see what action you have taken.

 

[AAA]

What I have learnt:
A) From my observations there is large downplay in the seriousness of this incurable STI from multiple medical professionals across multiple countries because “it’s very common and there is medication for it”.
B) HSV test is not included in standard sexual health screening and is only offered when symptomatic aka when it’s too late. CLF’s doctors comment regarding “too expensive” is very concerning. Those who are actively trying to protect themselves and others would happily pay an additional fee. CLF also has a point that a cure would be financially rewarding to investors.
C) Agree with the comment: “Anybody reading this may be shaking their heads at the silly girl who caught GH...and YOU may have it. "Oh, but I get tested" I hear you say.... Most people with it don't show any symptoms and may never know they have it.” This is accurate: “Most infections with HSV are asymptomatic with up to 80% of infections unrecognised and undiagnosed. Ref: Australian Family Physician Vol. 32, No. 5, May 2003. “In the United States, an estimated 87.4% of 14 to 49 year olds infected with HSV-2 have never received a clinical diagnosis… Most individuals infected with HSV are asymptomatic or have very mild symptoms that go unnoticed or are mistaken for another skin condition.” Ref: CDC. Based on the data there is a three - six month window between infection and accurately testing positive on recommended IgG test. This provides a window for people to unknowingly pass HSV-2 on.
D) Prosecution is available in many states of Australia but the burden of proof is with the plaintiff. If this testing was offered individuals would have:

• an informed decision regarding using protection for three to six months and re-testing IgG levels,
• an informed decision to exit the relationship if partner is positive,
• the power to prosecute people who are recklessly infecting others. Medicare Australia is legally allowed to share linked PBS and MBS data with law enforcement without a court order, so long as the disclosure is “reasonably necessary” to enforce criminal law. Yes the police can access their records, but because of the lack of testing it will be hard to meet the burden of proof

E) The tests that should be done are: IgM and IgG with knowledge of limitations. IgM shows very early but provides both false negatives and false positives. IgG on the other hand is positive in someone who has been infected for a longer period of time eg. three months, and can distinguish between HSV-1 and HSV-2.
F) The person who is infected does not legally have to share their status, they can also lie about their status, however if they decide not to share their status and act recklessly = do not wear protection (condom etc.), do not take antiviral medication every day and spread the infection it is unlawful.
G) Each state has its own laws, generally focused on preventing transmission e.g:

• NSW: Crimes Act 1900 covers serious STIs: Section 33 of that Act states that a person who causes grievous bodily harm with intent to another person faces a maximum penalty of 25 years imprisonment. Where they do so recklessly, the maximum penalty is 10 years imprisonment.
• QLD: Criminal Code 1899 - Sect 317, 1, b: to do some grievous bodily harm or transmit a serious disease to any person. Police have charged a man with knowingly infecting multiple women with HSV under this code (Feb, 2024).
• VIC: Vic Crimes Act (n 22) ss 16 (causing serious injury intentionally), 17 (causing serious injury recklessly).

As HSV is incurable thus can be included within serious harm.

I personally agree there is a duty of care not being offered by medical professionals which is adding to the spread of this STI. Negligence can be defined as a failure to take reasonable care or steps to prevent loss or injury to another person. In healthcare, negligence occurs when a healthcare professional fails to take reasonable care or steps to prevent loss or injury to a client (Caxton Legal Centre 2023). If a person is clearly communicating a request for a full and complete check, one could reasonably expect to be advised of the omission of a test relating to an incurable infection. Only 2.3% of woman who have cancer in one breast, will have cancer in the other, and 2% of men who have testicular cancer will have it in both testicles, yet if you felt a lump and asked for “a full and complete check” would you reasonably expect to have been tested in both, or just one with the lump? We should reasonably expect “full and complete check” at the minimum would include incurable STIs/a waiver to acknowledge the standard test excludes something of this nature.

I also believe although the majority of people are behaving morally we have malicious people in our society who are not being held accountable and they should be.

This is incurable and based on Australian law if someone is HSV+ to protect oneself legally they have to prove that they take antiviral medication everyday for the rest of their life and use protection every time they have sex. For most who would like to have a family this transcends into a waiver by proof of STI checks completed together/proof in writing that they accept the risks of being in a sexual relationship. There are multiple lawsuits internationally relating to HSV-1 and HSV-2, and per the recent arrest in Australia more may appear locally. For a medical professional to downplay and imply “no big deal” - I disagree.