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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I contracted herpes II from my husband after 10 yrs of marriage.

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I contracted herpes II from my husband after 10 yrs of marriage. We have been divorced for 3 yrs and I was tested in Sept 2009. I have been devastated and worry that I will be alone forever because of the herpes. His attitude is very nonchalant, saying that everyone has herpes and I shouldn't tell a man until after I'm engaged. He has no plans of telling anyone and refuses to get tested so he can live in denial. My ex is a doctor, who should know better. He has an Umbrella insurance policy and has money in the bank. I am considering a lawsuit because of the herpes. What are the chances of winning?
Submitted: 3 years ago.
Category: Legal
Expert:  Ely replied 3 years ago.
Hello,

Welcome to JustAnswer and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

You may be able to sue him. Did you know that he had this STD at the time that you married him or later? If so, were precautions taken?
Customer: replied 3 years ago.
No, I didn't know he had an STD...I believe he contracted it during our marriage. We had been married for 10 yrs before I got herpes II.( I had been tested for STD's just before we were married.)
We never used precautions during our marriage, we were starting a family.
Expert:  Ely replied 3 years ago.
Thank you.

In the last few years, the Courts have heard cases on STDs from former partners. There have been mixed results, but you certainty can try.

See here for a primer:
http://www.unifiedinjury.com/content/stds-and-personal-injury-can-you-sue-your-ex-std

Generally, the plaintiff sues for negligence and battery.

To premise a recovery on a theory of negligence, a plaintiff must establish three elements: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach. Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706. The theory here is that he was negligent in not telling you that he had this STDs, since as a partner, he owed you a duty to tell you.

Some plaintiffs also add a tort for civil battery.

You have two years from the time that you found out (or reasonably should have) to file suit.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you until you actually press ACCEPT. If you still need to clarify something or seek more information, just use the REPLY button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after accepting, should you wish to continue in the thread, and I encourage you to do so should you desire clarification.

If you feel that I went an extra step to help, a bonus is always appreciated!

While the legal system tries to be inclusive of every possibility, sometimes, people are morally wronged but have limited legal avenues to seek relief. If so, please understand that this is not the expert’s fault (in other words, I prefer to tell you the truth rather than tell you what you want to hear, so if the news is not good, please do not shoot the messenger).

You can always request me for a future advice through my profile at…

http://www.justanswer.com/law/expert-attorneyeli/

…if you do this, make sure to begin the question with “This Question is for Eli…”
Customer: replied 3 years ago.
What is a tort for cival battery? Would I need a personal injury attorney?
Is it important to hire an attorney who has won this type of case previously?
Can he seek retribution for slander? Which is what he would try.
Expert:  Ely replied 3 years ago.
Hello,

Battery can be loosely defined in civil law as an act bringing about an unconsented harmful or offensive contact with a person.

It would be very beneficial to hire an attorney, although not mandatory. An attorney with a 'general practice' is likely to be most suited.

Yes, it is important to have an attorney who has experience in such a field - won or lost.

Slander is a type of defamation. To maintain an action for defamation, a plaintiff must show a communication with four elements: 1) defamatory imputation; 2) malice; 3) publication; and 4) damages. Rambo v. Cohen (1992), Ind. App., 587 N.E.2d 140. If someone is accused of giving someone a 'loathsome disease,' it is Defamation Per se (damages assumed, no need to prove them). Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).

However, the issue here is - if he gave you STDs, then truth is the ultimate proof to any defamation accusation.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you until you actually press ACCEPT. If you still need to clarify something or seek more information, just use the REPLY button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after accepting, should you wish to continue in the thread, and I encourage you to do so should you desire clarification.

If you feel that I went an extra step to help, a bonus is always appreciated!

While the legal system tries to be inclusive of every possibility, sometimes, people are morally wronged but have limited legal avenues to seek relief. If so, please understand that this is not the expert’s fault (in other words, I prefer to tell you the truth rather than tell you what you want to hear, so if the news is not good, please do not shoot the messenger).

You can always request me for a future advice through my profile at…

http://www.justanswer.com/law/expert-attorneyeli/

…if you do this, make sure to begin the question with “This Question is for Eli…”
Customer: replied 3 years ago.
Like I said he is a doctor, to this day he refuses to be tested, so he "doesn't know if he has herpes." Is it possible to sue for battery and not negligence seeing that I can't prove he knows he has herpes?
Expert:  Ely replied 3 years ago.
Sure. It is possible to cause battery without meaning to - in analogy - hitting someone by accident is still battery.

In negligence, you can argue that if he knew, he had the duty to tell, and if he did not but cheated on you and slept around and engaged in risky behavior then he had the duty to test.

As you can tell, this type of suit is very subjective.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you until you actually press ACCEPT. If you still need to clarify something or seek more information, just use the REPLY button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after accepting, should you wish to continue in the thread, and I encourage you to do so should you desire clarification.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89067
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Ely
Ely
Counselor at Law
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Private practice with focus on family, criminal, PI, consumer protection, and business consultation.