Doe v. Surgicare of Joliet, Inc.

JUSTICE BARRY, dissenting:

Although I agree with the majority’s recitation of the applicable law in this case, I cannot agree with the majority’s holding that the emotional distress suffered by the plaintiffs in this case is not compensable in Illinois.

I find that requiring plaintiffs to allege "actual exposure” to the AIDS virus (as well as other diseases possibly transmitted) is both inconsistent with the rulings of our supreme court and inequitable under the facts of this case. It is erroneous to require that plaintiffs show actual exposure to maintain the present law suit for the same reasons our supreme court eliminated the requirement that plaintiffs allege a physical injury or illness in order to maintain an action for negligent infliction of emotional distress in Corgan v. Muehling (1991), 143 Ill. 2d 296 , 574 N.E.2d 602 . As noted by the majority, the court explained that a lack of objective evidence of damages "is not a justifiable reason to preclude recovery, as expert witnesses such as psychiatrists, psychologists and social workers are fully capable of providing the jury with an analysis of a plaintiff’s emotional injuries.” (Corgan, 143 Ill. 2d at 311 , 574 N.E.2d at 609 .) The court expressed its faith that jurors can use their own life experiences and guidance from health care professionals to fairly determine whether a person suffers serious emotional injuries as a result of the defendant’s conduct. (Corgan, 143 Ill. 2d at 312 , 574 N.E.2d at 609 .) I believe that these principles apply to the issue presented in the case at bar.

I acknowledge that Carroll v. Sisters of Saint Francis Health Services, Inc. (Tenn. 1993), 868 S.W.2d 585 , and a majority of other jurisdictions have required that plaintiffs show actual exposure to the HIV virus to recover damages for emotional distress caused by the fear of contracting AIDS. (E.g., Hare v. State (1991), 173 A.D.2d 523 , 570 N.Y.S.2d 125 ; Burk v. Sage Products Inc. (E.D. Pa. 1990), 747 F. Supp. 285 ; Funeral Services By Gregory, Inc. v. Bluefield Community Hospital (1991), 186 W. Va. 424 , 413 S.E.2d 79 ; Johnson v. West Virginia University Hospitals, Inc. (1991), 186 W. Va. 648 , 413 S.E.2d 889 .) However, the logic set forth in these cases is that without proof of actual exposure to the virus, the fear of contracting HIV and developing AIDS is so speculative as to be unreasonable as a matter of law.

I believe that this logic is flawed when applied to cases in which the defendant’s actions have made it impossible for plaintiff to prove actual exposure, such as the present case. Plaintiffs in this case could not allege actual exposure because the defendant’s own employee refused to be tested for HIV and the defendant refused to disclose the identification of the employee. The plaintiffs could not make the showing that the majority requires in this case because defendant withheld the information necessary to make such a showing. I find both equitable and persuasive the analysis of the Maryland Court of Appeals in Faya v. Almaraz, which stated: "In the instant case, we cannot say that appellants’ alleged fear of acquiring AIDS was initially unreasonable as a matter of law, even though the averments of the complaints did not identify any actual channel of transmission of the AIDS virus. But Burk’s requirement that plaintiffs must allege actual transmission would unfairly punish them for lacking the requisite information to do so.” Faya, 329 Md. at 455, 620 A.2d at 336-37.

Next, I believe a short recitation of the unique facts of this case puts the plaintiffs’ fears in perspective.

For our analysis, we first take judicial notice that HIV is a precursor to AIDS and that AIDS is an inevitably fatal disease. We further take judicial notice that intimate sexual contact and the use of contaminated hypodermic needles, through which the semen or blood of an infected person may be transferred to another, are primary modes of spreading the disease. (People v. Russell (1994), 158 Ill. 2d 23, 24-25 .) Plaintiffs were called into the office of the director of defendant health care facility approximately two months after surgery and told that a medical technician had stuck himself or herself with a needle and then injected Jane with that same needle. In the same breath, the director told plaintiffs that the same technician had refused the director’s request that he or she be tested for HIV. The plaintiffs were then told that the defendant would not identify the technician who used the contaminated needle and that Jane and her husband should be tested for HIV.

The majority finds plaintiffs’ claim too speculative to be compensable and states that recovery should be based on the likelihood of contracting HIV, not the fear that it could have happened. However, considering the facts from the plaintiffs’ perspective, if the risk of transmission was so speculative, then was it unreasonable for Dr. Svab to advise plaintiffs to undergo a blood test to detect HIV? Even if Dr. Svab’s suggestion that plaintiffs be tested for HIV was unreasonable, it was reasonable for plaintiffs to rely on the doctor’s opinion that the risk warranted another invasive procedure to test for the disease. I do not believe that either the doctor’s advice or the patient’s reaction was unreasonable. Rather, what was unreasonable in this case was the negligent act of using a contaminated needle, refusing to dispel plaintiffs’ fears through testing of the medical technician and disclosing the results, and concealing the negligent act for two months thereby placing John Doe at risk.

Illinois law allows recovery for a plaintiff who merely witnesses an injury to or death of another from a close proximity, and who is subject to a risk of physical harm for only seconds. (See Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546 , 457 N.E.2d 1 ; Kapoulas v. Williams (7th Cir. 1993), 11 F.3d 1380 .) In light of this, I find it inconsistent to deny recovery to plaintiffs who must wonder for months whether they have contracted a fatal disease at the negligent hands of another, under the facts of this case.

The record does not reveal that Dr. Svab offered any reasons to plaintiffs for the necessity of withholding the technician’s identity or the delay in informing the plaintiffs of the incident. Although the risk of HIV transmission during surgery is very low when proper barrier techniques are employed, such barriers failed in the present case. Further, although the risk of transmission may be extremely low, it may still be viewed as unreasonable in the eyes of the patient. (See LeBlang, Obligations of the HIV-Infected Health Professionals to Inform Patients of Their Serological Status: Evolving Theories of Liability, 27 J. Marshall L. Rev. 317 , 323, 327 (1994) (discussing civil liability of health care professionals who put patients at risk of contracting HIV).) Considering the current explosion of information being published by the media as well as State and Federal agencies about HIV and AIDS and the effects on its victims, I find that plaintiffs’ fears of contracting HIV and developing AIDS under the facts of this case were not unreasonable as a matter of law. (See Castro v. New York Life Insurance Co. (1991), 153 Misc. 2d 1 , _, 588 N.Y.S.2d 695, 698 (Supp. 1991).) Under the facts of this case, I believe that it is for the jury to decide whether the emotional distress caused by the fear of contracting AIDS is compensable.

The fact that the plaintiffs later tested negative for the HIV virus does not preclude recovery in this case. However, it does limit damages to the length of time during which plaintiffs’ fears were reasonable. Once plaintiffs’ received information "putting to rest” the fear of contracting HIV to a reasonable degree of medical certainty, emotional distress would then be unreasonable and not compensable as a matter of law. Faya v. Almaraz (1993), 329 Md. 435, 455 , 620 A.2d 327, 336 ; see also Kerins v. Hartley (1993), 17 Cal. App. 4th 713 , 715, 21 Cal. Rptr. 2d 621 , 632, cert. granted (1993), 24 Cal. Rptr. 2d 236 , 860 P.2d 1182 , transferred with directions to vacate and reconsider (1994), 28 Cal. Rptr. 2d 151 , 868 P.2d 906 .

In light of the confidence in a jury’s ability to determine emotional distress expressed by our supreme court in Corgan and the logic set forth by the courts of other jurisdictions on this issue, I would hold that the appropriate standard to be applied in this case is a reasonableness standard. I would find the trial court’s order dismissing counts II and III of plaintiffs’ complaint erroneous insofar as it would require plaintiffs to show actual exposure to the HIV virus. However, I would expressly limit our holding to the facts in the present case. Where plaintiff is exposed to the blood of another as a result of the other’s negligence, and thereafter plaintiff cannot prove or disprove actual exposure to the HIV virus due to the defendant withholding information, I cannot conclude that plaintiff’s fears are unreasonable as a matter of law.

Accordingly, I respectfully dissent.