Christus Health/St. Joseph Hospital v. Angela Price

Opinion issued May 24, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00210-CV

CHRISTUS HEALTH/ST. JOSEPH HOSPITAL, Appellant

V.

ANGELA PRICE, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-121459

MEMORANDUM OPINION ON REHEARING

We issued an opinion in this case on February 1, 2007. Appellant, Christus

Health/St. Joseph Hospital moved for a rehearing. (1) We grant rehearing, withdraw our

opinion and vacate our judgment of February 1, 2007, and issue this opinion in its

stead.

Appellant, Christus Health/St. Joseph Hospital, appeals a judgment in favor of

appellee, Angela Price, that was entered in accordance with the jury's verdict. The

hospital sued Price to attempt to reverse a determination by the Texas Workers'

Compensation Commission (TWCC), which had found that Price sustained a

compensable injury in the course and scope of her employment with the hospital. The

sole issue submitted to the jury was whether Price had received a compensable injury.

The jury agreed with the determination by the TWCC. The trial court rendered

judgment that the hospital take nothing in its suit against Price and awarded Price her

attorney's fees and costs for trial and appellate attorney's fees in the event of an

unsuccessful appeal by the hospital. In three issues, the hospital contends that (1) the

trial court erred by excluding medical records obtained by a deposition on written

questions, (2) the trial court erred by allowing Price's expert witness to testify, and

(3) the evidence was legally and factually insufficient to support the jury's verdict

that Price sustained a compensable injury. We conclude that the hospital failed to

preserve for appeal its challenges to the legal and factual sufficiency of the evidence.

We also conclude that the trial court did not err by allowing Price's expert to testify.

We further conclude that, assuming the trial court erred by excluding the deposition

on written questions, the error was harmless. We affirm the judgment of the trial

court.

Background

On June 30, 1994, Price was working as a certified nursing assistant for the

hospital. While attempting to draw blood from a patient with human

immunodeficiency virus (HIV) who had developed Acquired Immune Deficiency

Syndrome (AIDS), Price was stuck in her finger by a needle she had used on the

patient. Price immediately reported the needle stick to her supervisors and went to

the hospital's emergency room. Price tested negative for HIV on the date of the

incident. In accordance with the hospital's protocol after an employee was exposed

to HIV, Price was tested several times over the following months. Price tested

negative for HIV in August 1994, which was 30 days after she was stuck by the

needle, December 1994, which was 6 months after she was stuck, and April 1995,

which was 10 months after she was stuck. According to the hospital, 17 months after

Price was stuck, she again tested negative for HIV.

In December 1998, over four years after getting stuck by the needle, as part of

a physical examination while applying for life insurance, Price tested positive for

HIV. Price filed a claim for worker's compensation benefits, alleging that she

contracted HIV from the needle stick. The hospital denied her claim. After a

contested case hearing before the TWCC, the hearing officer found that the needle

stick was a compensable injury that Price incurred on June 30, 1994, in the course and

scope of her employment for the hospital. The hospital appealed the hearing officer's

decision to an appellate panel of the TWCC, which affirmed the decision of the

hearing officer. To challenge the TWCC's determination that the hospital was liable

for Price's injury, the hospital filed this suit, seeking judicial review of the TWCC's

determination.

At trial, Elaine Whittingon, a nurse employed by the hospital, testified that

according to the hospital's records, Price was stuck by a needle that had been used on

a patient infected with HIV. Price also described how she was stuck by the needle.

Price further testified that, after the HIV tests performed by the hospital, she was not

tested again until the December 1998 test for life insurance. Price specifically denied

being tested for HIV by Dr. Meredith in November 1995. The hospital offered into

evidence the deposition on written questions propounded to Dr. Meredith on various

grounds, including to impeach the testimony of Price, but Price objected to the

medical records on the grounds that they were business records that had not been on

file with the court for more than 14 days before trial. The trial court refused to admit

the evidence. The excluded records indicate that Price tested negative for HIV at the

test taken 17 months after she was stuck by the needle.

Three medical experts testified at trial. Dr. Seibert, an infectious disease

physician employed by the hospital, and Dr. Septimus, the medical director of the

infectious disease and employee health departments for Memorial Hermann

Healthcare Systems, testified as experts for the hospital. Dr. Seibert testified that

.003% of healthcare workers that "get a needle stick from an HIV positive patient get

HIV." He explained that out of this .003 that actually get HIV, "in excess of 99%"

of them test positive to the ELISA test within six months." (2) Dr. Septimus testified

similarly that "if you look at medical literature and the tracking that the Centers for

Disease Control does, virtually all employees that have had transmissions of HIV

from needle sticks will develop antibodies by six month[s]." Dr. Septimus said that

the negative six month test "virtually excluded the possibility" that Price got HIV

from the needle stick, "except for some rare exceptions."

In addition to the negative six month test for HIV, Price also tested negative

for HIV ten months after she was stuck by the needle. Drs. Seibert and Septimus

testified that the ten month test increased their level of confidence to above 99% that

the needle stick at the hospital did not cause Price's HIV. Dr. Septimus testified that

the additional negative result at ten months, following the negative HIV test at six

months, "raises the confidence up to ninety-nine plus percent" that the needle stick

was not the cause of the HIV.

The jury also heard Drs. Seibert and Septimus testify hypothetically that if

someone who was stuck by a needle that was used on an HIV infected patient, and

that person tested negative for HIV at six months, at 10 months, and at 17 months, the

results from the 17 months test would "add additional evidence" that the person was

not infected by the needle. Dr. Seibert said that he has never seen a single reported

case in medical science of a person who tested negative at 17 months and then got

HIV.

Price's treating physician, Dr. Salvato, also testified. Dr. Salvato is board

certified in internal medicine and specializes in treating patients with HIV and AIDS.

She is a member of the American Academy of HIV Specialists. Dr. Salvato explained

that one measure of progression of HIV and AIDS is the patient's T-cell count. In the

"great majority" of patients, the T-cell count declines at a certain rate. Dr. Salvato

testified that Price's T-cell count progression was consistent with her contracting HIV

from the 1994 needle stick. Additionally, in contradiction of the opinions of Dr.

Seibert and Dr. Septimus, Dr. Salvato testified that reliable medical evidence exists

that a person can be infected with HIV and not test positive for it for extended periods

of time. In particular, Dr. Salvato referred to her own experience and observations,

a New England Journal of Medicine article, and information from the International

Conference on AIDS. Dr. Salvato stated that, in reasonable medical probability, Price

contracted HIV from the needle stick in 1994.

Sufficiency of the Evidence

In its third issue, the hospital contends that the evidence is legally and factually

insufficient to support the jury's verdict that the needle stick was a compensable

injury. Specifically, the hospital contends that "Dr. Salvato's testimony does not meet

the requirements for expert testimony and is no evidence and/or insufficient evidence

to support" the jury's verdict. Because this was an appeal from a TWCC

determination, the hospital bore the burden of proving, by a preponderance of the

evidence, that Price did not receive a compensable injury. (3) See Tex. Lab. Code Ann.

§§ 410.301 (a), 410.303 (Vernon 2006).

As a preliminary matter, we review the record to determine whether the

hospital preserved error. To preserve for appeal a complaint of legal insufficiency of

the evidence, a party must have specifically raised its complaint in (1) a motion for

instructed verdict, (2) an objection to the submission of a jury question, (3) a motion

for judgment notwithstanding the verdict, (4) a motion to disregard the jury's answer

to a vital fact question, or (5) a motion for new trial. Cecil v. Smith , 804 S.W.2d 509,

510-11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall , 95 S.W.3d 407,

411 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). Here, the hospital did not

move for an instructed verdict. The hospital did not object to the submission of a jury

question. (4) The hospital did not move for judgment notwithstanding the verdict or to

have the trial court disregard the jury's answer to a vital fact question. The hospital

did move for a new trial. However, the motion for new trial does not complain about

the legal sufficiency of the evidence to support the jury's verdict. Accordingly, we

conclude that the hospital has not preserved the issue of the legal sufficiency of the

evidence.

With respect to the factual-sufficiency complaint, Rule 324 of the Texas Rules

of Civil Procedure, "Prerequisites of Appeal," provides,

(a) Motion for New Trial Not Required. A point in a motion for

new trial is not a prerequisite to a complaint on appeal in either a

jury or a nonjury case, except as provided in subdivision (b).

(b) Motion for New Trial Required. A point in a motion for new

trial is a prerequisite to the following complaints on appeal:

. . .

(2) A complaint of factual insufficiency of the evidence to

support a jury finding;

. . . .

Tex. R. Civ. P. 324. The hospital's motion for new trial did not raise the issue of

factual insufficiency of the evidence. Accordingly, we conclude that the hospital's

factual-sufficiency complaint has not been preserved. See Marshall , 95 S.W.3d at

411-12 .

We overrule the hospital's third issue.

Admission of Expert Opinion Testimony

In its second issue, the hospital contends that the trial court erred by allowing

Price's expert, Dr. Salvato, to offer her opinion of causation to the jury. Specifically,

the hospital asserts that Dr. Salvato's opinion was unreliable because

(1) Dr. Salvato's opinion that [Price] and her pattern of HIV illness

matched a health care worker who had gotten the virus from a needle

stick as reported in a Center for Disease Control (CDR) [sic] article was

erroneous; (2) the article from the New England Journal of Medicine,

Defendant's Exhibit 3, which Dr. Salvato relied on in basing her opinion

that the June 30, 1994 needle stick was the cause of [Price's] HIV status

was based on highly variable T-cell progression rates; (3) Dr. Salvato

opined in prior affidavits that it was only possible that [Price] had been

affected by the 1994 needle stick; and (4) Dr. Salvato exclusively relied

upon [Price's] subjective complaints in forming her opinion on

causation.

Price responds that the hospital's challenges concern "the unreliability of Dr.

Salvato's conclusions," and not "the underlying methodology on which Dr. Salvato

based her conclusions."

The trial court has broad discretion in determining whether an expert's

testimony is reliable and admissible. (5) Keo v. Vu , 76 S.W.3d 725, 730 (Tex.

App.--Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de Nemours & Co.

v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995) ). The trial court abuses its discretion

if it acts without reference to any guiding rules or principles. Id. If expert testimony

is not reliable, it is not admissible. Brookshire Bros. v. Smith , 176 S.W.3d 30, 36

(Tex. App.--Houston [1st Dist.] 2004, pet. denied) (citing Merrell Dow Pharm., Inc.

v. Havner , 953 S.W.2d 706, 712-13 (Tex. 1997) and Coastal Tankships, U.S.A., Inc.

v. Anderson , 87 S.W.3d 591, 610 (Tex. App.--Houston [1st Dist.] 2002, pet.

denied)). To determine reliability, the court may consider the following

non-exclusive factors: (1) the extent to which the expert's theory has been or can be

tested, (2) the extent to which the technique relies upon the expert's own subjective

interpretation, (3) whether the expert's theory has been subjected to peer review and

publication, (4) the potential rate of error of the theory, (5) whether the expert's

theory or technique has been generally accepted as valid by the relevant scientific

community, and (6) the non-judicial uses that have been made of the expert's theory

or technique. Keo , 76 S.W.3d at 734 (citing Gammill v. Jack Williams Chevrolet,

Inc. , 972 S.W.2d 713, 720 (Tex. 1998)). "The trial court is not to determine whether

the expert's conclusions are correct, but only whether the analysis used to reach them

is reliable." Id. (citing Gammill , 972 S.W.2d at 728 ). If an expert's opinion is shaky

or is based on a weak factual foundation, this does not necessarily render the opinion

inadmissible because cross-examination is "the traditional and appropriate means of

attacking shaky but admissible evidence." Gammill , 972 S.W.2d at 728 (quoting

Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 596 , 113 S. Ct. 2786, 2798

(1993)); see also Keo , 76 S.W.3d at 734-35 (stating that alleged unreliability of

doctor's expert opinion because it was based on self-serving statements of plaintiff

went "to the weight, rather than the admissibility, of the evidence").

Dr. Salvato opined that, in reasonable medical probability, Price was infected

with HIV by the needle stick in 1994. Dr. Salvato's primary practice is the treatment

of patients with HIV and AIDS. Dr. Salvato testified that she was Price's primary

care physician and had been for six years. Dr. Salvato testified that she based her

opinion on the medical history Price gave to her in the course of their six-year doctor-patient relationship; the progression of Price's T-cell count; medical articles

regarding the progression of HIV and AIDS, including the period of time for which

persons can be infected before seroconversion; and her own experience and education

regarding HIV infection.

The hospital contends that Dr. Salvato's reliance on a New England Journal of

Medicine article from 1989 shows that her testimony that a person may be infected

and remain seronegative for long periods of time is unreliable. The article describes

31 patients who were infected with HIV. However, 27 of the 31 patients remained

seronegative for up to 36 months. The hospital contends that because the study was

based on homosexual men, it is distinguishable from Price's case. The hospital also

points out that Dr. Salvato admitted that this study did not disturb conventional

thinking that 95% of persons infected with HIV test positive on an antibody test

within six months. However, the hospital does not explain the significance of the

gender or sexual orientation of an HIV positive patient. Dr. Salvato testified, "It

doesn't matter how you get the virus, the virus is the same. . . . So if she got the virus

by needle stick or she got it by blood transfusion or IV drug use, the AIDS virus is

the AIDS virus, we can't say that it's going to progress differently in her than a

homosexual male." We cannot conclude that the trial court abused its discretion by

admitting the testimony of Dr. Salvato, a medical doctor with extensive experience

treating patients with HIV, including this patient, and whose opinion was supported

by peer-reviewed medical literature.

Even if the trial court abused its discretion in admitting Dr. Salvato's

testimony, we note that any purported error must be harmful--here, that admitting Dr.

Salvato's testimony "probably did cause, 'rendition of an improper judgment.'"

Benavides v. Cushman, Inc. , 189 S.W.3d 875, 79 (Tex. App.--Houston [1st Dist.]

2006, no pet.) (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning Fiberglas

Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998)). The hospital contends that the

error was harmful because "[t]here was no other evidence [Price] relied upon in

proving causation" and "the remaining competent evidence was insufficient to

support the judgment."

Even without Dr. Salvato's testimony, we conclude that the remaining

testimony is sufficient to support the jury's verdict. See GTE Sw., Inc. v. Bruce , 998

S.W.2d 605, 620 (Tex. 1999) (concluding that error in admitting expert testimony

was harmless because other testimony was sufficient to support jury's verdict). The

jury may accept or reject the testimony of any witness, including an expert's opinion

testimony. See City of Keller v. Wilson , 168 S.W.3d 802, 819-20 (Tex. 2005); see

also Bruce , 998 S.W.2d at 620 ("'Jurors realize that they are the final triers to decide

the issues. They may accept or reject an expert's view.'") (quoting Louder v. De

Leon , 754 S.W.2d 148, 149 (Tex. 1988)).

First, in this suit seeking to reverse a TWCC decision in Price's favor, the

burden was on the hospital to persuade the jury that the needle stick did not cause

Price's HIV infection, not on Price to establish that it did. See Tex. Lab. Code Ann.

§ 410.303 . Although Dr. Seibert opined that Price did not contract HIV from the

needle stick, he nonetheless testified that seroconversion nine months after infection

was possible, but "very rare." Further, Dr. Seibert and Dr. Septimus testified

regarding the most common methods of HIV infection. They stated that the most

common methods of transmission for HIV are (1) mother to fetus; (2) sexual

transmission (the highest risk in this category is male-to-male sexual activity); and

(3) blood-borne transmission (which includes needle sticks and IV drug use). It is

undisputed that Price's infection was not a result of mother-to-fetus transmission or

male-to-male sexual transmission. Price testified that she was not an IV drug user

and that she had not been exposed to sexual transmission of HIV. She also stated that

her only exposure to HIV infection was the needle stick in 1994.

The hospital had the burden to prove by a preponderance of the evidence that

Price was not infected with HIV by the 1994 needle stick. The jurors could choose

to believe Price's testimony and reject in part the testimony from the hospital's

experts. Further, the record contains no evidence that anything other than the needle

stick caused Price's HIV, a method of transmission that the hospital's experts

acknowledged as a common method of transmission of the virus. Accordingly, we

conclude that the hospital has not shown that it was harmed by the admission of Dr.

Salvato's testimony. See Bruce , 998 S.W.2d at 620 .

We overrule the hospital's second issue.

Exclusion of Medical Records

In its first issue, the hospital asserts that the trial court erred by excluding

medical records obtained by a deposition on written questions of Dr. Meredith, which

purportedly show that in November 1995, approximately 17 months after the needle

stick, an HIV screening performed on Price was negative. On appeal, the hospital

observes that the trial court erred because the 14-day filing requirement applies only

to affidavits from a custodian of the records, not to records obtained through a

deposition on written questions. The hospital further asserts that the exclusion of

these records was harmful error because the doctors who testified at trial stated that

a negative HIV test performed 17 months after exposure would raise their confidence

in concluding that the exposure did not result in the person contracting HIV and

because "no other evidence adduced at trial . . . reflected a negative HIV test

performed seventeen months post needle stick." The hospital also contends that the

exclusion was harmful because the jury inquired about the excluded medical records.

Price responds that the error, if any, was harmless because the evidence was

cumulative and not controlling on a material issue dispositive of the case.

"The admission and exclusion of evidence is committed to the trial court's

sound discretion." Benavides , 189 S.W.3d at 878 -79 (citing City of Brownsville v.

Alvarado , 897 S.W.2d 750, 753 (Tex. 1995)). "To obtain reversal of a judgment

based on error in the admission or exclusion of evidence, an appellant must show that

the trial court's ruling was erroneous and that the error was calculated to cause, and

probably did cause, 'rendition of an improper judgment.'" Benavides , 189 S.W.3d

at 879 (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning , 972 S.W.2d at 43 ).

In conducting this harm analysis, we review the entire record. Tex. Dep't of Transp.

v. Able , 35 S.W.3d 608, 617 (Tex. 2000); Alvarado , 897 S.W.2d at 754 ; Benavides ,

189 S.W.3d at 879 . Evidentiary rulings do not usually cause reversible error unless

the appellant can demonstrate that the judgment turns on the particular evidence that

was admitted or excluded. Able , 35 S.W.3d at 617 ; Alvarado , 897 S.W.2d at 753-54 ;

Benavides , 189 S.W.3d at 879 . Reversal is required if the erroneously excluded

evidence "is both controlling on a material issue and not cumulative." Mentis v.

Barnard , 870 S.W.2d 14, 16 (Tex. 1994); see also Benavides , 189 S.W.3d at 880

(holding that there was no harm in excluding expert's testimony regarding incidents

similar to incident that injured plaintiff because jury heard evidence concerning other

incidents from other sources).

Assuming the trial court erred by excluding the medical records, the error was

not harmful because (1) the jury heard testimony that indicated that Price had tested

negative for HIV at 17 months and (2) in view of the hospital's experts, a negative

HIV result at 17 months did not significantly alter their opinion that Price did not

contract HIV due to the needle stick. Rather, at most, it affected the doctors'

testimony by less than one percent, from a confidence level in their opinion of "over

99%" to a confidence level of "99.9%."

Dr. Seibert testified that the HIV screening test performed on Price 17 months

after the needle stick was negative. (6) When this testimony was admitted, the trial court stated "Well, it's a document that has not been admitted into evidence, so its not

something he can testify to, " and told the hospital's counsel, "You're going to have

to get this in, in accordance with the rules of evidence." The exclusion of the medical

records, however, did not cause the hospital's experts to be unable to give an opinion

about the consequences of a negative HIV test done 17 months after the needle stick

or change the experts' opinions based on the 10-month negative test, which had been

admitted into evidence. (7) Further, the exclusion of the records did not affect the

hospital's ability to present its theory at trial. For example, the hospital presented the

theory during voir dire. (8) The hospital also referred to the 17-month test in closing

argument. (9)

The hospital contends that the harm caused by the exclusion of the evidence

is shown because the jury, during deliberations, asked about the excluded medical

records. The jury asked the following question:

What is considered evidence, and more specifically what we may have

heard, as in the document that the plaintiff wanted to introduce as

evidence about her doctor visit and HIV test on Nov. 1995? Is this

evidence we can use since we heard it or we cannot since it was not

introduced?

The trial court's response was "Evidence introduced and admitted and testimony from

witness stand not objected to and objection not sustained is evidence." Dr. Seibert's

direct testimony that the 17-month HIV test was negative was objected to initially by

Price's counsel, but that objection was overruled. As the trial court instructed the jury

it was evidence because the "objection [was] not sustained."

More importantly, even if the evidence about the 17-month negative HIV test

was not before the jury, that evidence had little impact on the hospital's experts'

opinions. The hospital's experts testified that the negative HIV test done at six

months gave them a 95% confident opinion that Price's HIV was not a result of the

needle stick, and the negative HIV test done at 10 months gave them an "over 99%"

confident opinion that Price's HIV was not the result of the needle stick. A test at 17

months increased their confidence to "99.9%."

We hold that even if the trial court improperly excluded Dr. Meredith's medical

records, the hospital has not shown that the error probably caused the rendition of an

improper judgment, as the experts who testified reached the same opinion that

Prices's onset of HIV four years later was too remote to relate to the needle stick at

the hospital--regardless of whether Price tested negative at only 10 months or at both

10 months and 17 months. See Tex. R. App. P. 44.1(a)(1); see Able , 35 S.W.3d at

617 ; Alvarado , 897 S.W.2d at 753-54 ; Benavides , 189 S.W.3d at 879 .

We overrule the hospital's first issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

1. We requested a response from appellee, Angela Price, but she did not file one.

2. The ELISA test is an HIV screening test. It tests for the presence of antibodies, not

for the presence of the virus. When a person contracts HIV, the virus itself is in the

body. However, there is a lag between the time HIV is contracted and the time that

the body makes antibodies to combat the virus. Thus, it is possible for a person to

have HIV, but not have the antibodies. In other words, a negative antibody test does

not necessarily rule out the presence of HIV. However, the antibody test gives very

few false negatives when antibodies are present. The change of an antibody test from

negative to positive, which indicates that the body has developed antibodies in

response to the infection, is called "seroconversion." A person who does not have the

antibodies is "seronegative"; a person who does is "seropositive."

3. The jury was asked a single question:

Do you find from a preponderance of the evidence that ANGELA

PRICE did not sustain a compensable injury, HIV (human

immunodeficiency virus), in the course and scope of her employment

with CHRISTUS HEALTH/ST. JOSEPH HOSPITAL on June 30,

1994?

Answer: Yes, if she was "not injured"

No, if she was "injured"

The jury answered "no."

4. When the trial court presented the charge to the parties for a final review, the hospital

stated, "Plaintiff agrees, no objection."

5. To be admissible, an expert must also be qualified. See Keo v. Vu , 76 S.W.3d 725,

730 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de

Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995)). In this case, the

hospital has not challenged Dr. Salvato's qualifications. Dr. Salvato specializes in the

treatment of patients with HIV and AIDS.

6. The record shows that Dr. Seibert testified as follows:

[Hospital's counsel]: Have you had an opportunity to review any additional

HIV screening in Ms. Price's case?

[Dr. Seibert]: I saw the one test that was done seventeen months

afterwards.

[Hospital's counsel]: And what was the result of that test?

[Dr. Seibert]: It was-

[Price's counsel]: Your Honor, I'm going to object, this is part of the body

of documents you have excluded.

The Court: Overruled.

[Dr. Seibert]: Could you--I'm sorry?

[Hospital's counsel]: Sure. The question was--I forgot what the question

was--

The Court: The court reporter can read it back for you.

[Hospital's counsel]: Let me start over. Has it come to your awareness that

there was an additional HIV test in Ms. Price's case

before December of 1998?

[Dr. Seibert]: Do you mean, did I--I learned of this additional test

recently. I didn't--don't think I knew it up until fairly

recently.

[Hospital's counsel]: Okay. And what was the result of this test seventeen

months after the needle stick?

[Hospital's counsel]: It was positive--I'm sorry, it was negative.

The Court: Well, it's a document that has not been admitted into

evidence, so its not something he can testify to.

[Hospital's counsel]: But he has relied upon it, Your Honor. He has reviewed

it.

The Court: I haven't heard any reliance upon it at all.

[Hospital's counsel]: If--

The Court: In fact, it's been pretty clear that he did not use that to

formulate his final report.

[Hospital's counsel]: Your Honor, there are some special circumstances

surrounding this particular test.

The Court: You're going to have to get this in, in accordance with

the rules of evidence.

[Hospital's counsel]: Okay.

[Hospital's counsel]: [Begins asking hypothetical involving 17 month test.]

7. The record shows that Dr. Seibert testified as follows:

[Hospital's counsel]: I want you to assume with me, for purposes of a

hypothetical, that somebody has a needle stick event and

tests negative on day one, negative six weeks, negative

nine months, negative seventeen months, assuming those

facts to be true, what does that do to the probability that

HIV resulted from that needle stick?

[Dr. Seibert]: Well, it makes--it makes it almost impossible.

Dr. Septimus also testified about the consequences of a negative HIV test that was

performed 17 months after an exposure to HIV. Dr. Septimus stated the he had

"reviewed some records from Dr. Meredith," and stated that "[a]nother blood test was

done, I believe, by Dr. Meredith." Dr. Septimus thus did not specifically testify as to

the timing or the results of the test. However, Dr. Septimus stated that a negative test

at six months gave him 95% confidence that the exposure had not resulted in HIV

infection, that a ten-month test gave him 99% confidence, and that a 17 month test

"would virtually rule out" that the exposure resulted in infection and that "it would

be 99.9% that the transmission did not occur."

8. The hospital's counsel told the venire, "The evidence is further going to show that six

months after that, in November of '95, she had another negative HIV screening, so

more than 17 months post-event there was negative, negative, negative test."

9. The hospital's counsel argued,

It was like pulling teeth to get an answer to a simple question. And yet

on direct examination, she was lucid, she was clear, she was articulate,

very forthcoming with information. When I asked a question, I just go

blank stares, confusion. She denied that she was in Dr. Meredith's

office on November 21 of 1995 at 2:31 p.m. She denied that Dr.

Meredith took blood and sent it to a lab for an HIV test. That never

happened.

Later the hospital argued to the jury about Dr. Seibert's testimony as follows:

We asked Dr. Seibert, assuming we've got negative test on the day of

event, six weeks, six months, nine months, based upon that, every time

you repeat that test your confidence level goes up because it's a very

sensitive test, so every time you keep testing, if you keep getting the

same result, you're more and more confident with your findings. If she

was tested at 17 months by Dr. Meredith on November 21 of 1995,

what would that do to your confidence and your opinion, almost

certainty. The needle stick had nothing to do with the '98 HIV positive

status.

Finally, regarding Dr. Septimus's testimony, the hospital asserted,

And I asked [Dr. Septimus], here, "Have you become aware of the

possibility of another antibody test, what would that do to your opinion

that he expressed back in 2001, if - - if at 17 months there was another

negative antibody screen in addition to the four that we knew about, a

fifth one.["] It would make it almost absolute, that the needle stick had

nothing to do with the infection.