Doe v. Northwestern University

PRESIDING JUSTICE DiVITO, specially concurring:

Although I agree with the result reached by the majority and with much of its analysis, I disagree with the standard it applies to determine whether a fear of HIV infection is compensable. According to the majority, plaintiffs may recover damages "for the time in which they reasonably feared a substantial, medically verifiable possibility of contracting AIDS.” 289 Ill. App. 3d at 49. The majority states that this standard is compatible with cases requiring plaintiffs to prove actual exposure to the virus in order to recover damages based on a fear of HIV infection, but it stops short of requiring actual exposure. I write separately because I believe that an "actual exposure” requirement is preferable.

According to the majority, plaintiffs’ fears of HIV infection were reasonable but not severe enough to warrant tort compensation. The majority states that plaintiffs’ fears would have been compensable if they had faced "a particularly substantial risk of HIV infection,” but because they did not face more than an extremely remote possibility of contracting AIDS, they did not suffer legally cognizable damages. 289 Ill. App. 3d at 51. While I agree that plaintiffs failed to show that they suffered legally cognizable damages, I believe that the compensability of a claim for fear of HIV infection should depend on proof that a plaintiff was actually exposed to the virus.

To establish actual exposure, a plaintiff must show that HIV was present in the alleged disease-transmitting agent and that a medically accepted channel of transmission for the virus existed. See Madrid v. Lincoln County Medical Center, 122 N.M. 269, 275 , 923 P.2d 1154, 1160 (1996); see also Vallery v. Southern Baptist Hospital, 630 So. 2d 861, 867 (La. App. 1993) (plaintiff must show both the presence of the virus and a channel of transmission); Brown v. New York City Health & Hospitals Corp., 225 A.D.2d 36, 45 , 648 N.Y.S.2d 880, 886 (1996) (requiring proof of actual exposure, that is, "proof of both a scientifically-accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV-positive (in this case the unfortunate infant)”); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (requiring evidence of actual exposure to the virus and evidence of a medically recognized channel of transmission).

The application of the "actual exposure” requirement is supported by a third district decision in this state, Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793 , 643 N.E.2d 1200 (1994), appeal denied, 158 Ill. 2d 550 , 645 N.E.2d 1357 (1994), as well as by decisions in a majority of jurisdictions. See, e.g., Brzoska v. Olson, 668 A.2d 1355 (Del. 1995); Russaw v. Martin, 221 Ga. App. 683 , 472 S.E.2d 508 (1996); Neal v. Neal, 125 Idaho 617 , 873 P.2d 871 (1994); Vallery v. Southern Baptist Hospital, 630 So. 2d 861 (La. App. 1993); K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Drury v. Baptist Memorial Hospital System, 933 S.W.2d 668 (Tex. App. 1996); Funeral Services by Gregory, Inc. v. Bluefield Community Hospital, 186 W. Va. 424 , 413 S.E.2d 79 (1991), rev’d on other grounds, Courtney v. Courtney, 190 W. Va. 126 , 437 S.E.2d 436 (1993); Babich v. Waukesha Memorial Hospital, Inc., 205 Wis. 2d 690 , 556 N.W.2d 144 (Wis. App. 1996); but see Faya v. Almaraz, 329 Md. 435 , 620 A.2d 327 (1993); Williamson v. Waldman, 291 N.J. Super. 600 , 677 A.2d 1179 (App. Div. 1996).

The reasoning of these cases is persuasive. For example, in Brown v. New York City Health & Hospitals Corp., 225 A.D.2d 36, 45 , 648 N.Y.S.2d 880, 886 (1996), the court required a showing of actual exposure in a negligence case based on a fear of developing AIDS. The court stated that the "actual exposure” requirement would insure that a plaintiffs fear of developing the disease has a genuine basis, that a plaintiff’s fear is not based on public misconceptions, and that cases involving claims based on a fear of HIV infection are treated consistently. The court further explained:

"Because an 'AIDS-phobia’ cause of action is based on a potential future injury, the requirement of proof of actual exposure is necessary in order to insure that such a cause of action remains within the bounds of what is considered reasonably possible. The fear of contracting AIDS depends not only upon the likelihood that the virus was transmitted during a specific incident but also upon the likelihood that infection will develop. As one court noted, the statistical probability of contracting HIV from a single needle stick, assuming the needle was contaminated, is approximately 0.3 to 0.5 percent. Thus, the risk of exposure to HIV where the needle cannot be traced to a previous user is less than that, although it cannot be mathematically calculated [citation].” Brown, 225 A.D.2d at 47 , 648 N.Y.S.2d at 887 .

See also Brzoska, 668 A.2d at 1362-64 ; Russaw, 221 Ga. App. at 685 , 472 S.E.2d at 511 .

The court in K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995), also listed a number of policy considerations that support an "actual exposure” requirement:

" 'Proliferation of fear of AIDS claims in the absence of meaningful restrictions would run an equal risk of compromising the availability and affordability of medical, dental and malpractice insurance, medical and dental care, prescription drugs, and blood products. Juries deliberating in fear of AIDS lawsuits would be just as likely to reach inconsistent results, discouraging early resolution or settlement of such claims. Last but not least, the coffers of defendants and their insurers would risk being emptied to pay for the emotional suffering of the many plaintiffs uninfected by exposure to HIV or AIDS, possibly leaving inadequate compensation for plaintiffs to whom the fatal AIDS virus was actually transmitted.’ ” K.A.C., 527 N.W.2d at 559-60 , quoting Kerins v. Hartley, 27 Cal. App. 4th 1062, 1074 , 33 Cal. Rptr. 2d 172, 179 (1994).

For these reasons, I would require proof of actual exposure as a prerequisite to recovery in cases based on a fear of HIV infection.

In this case, plaintiffs alleged breach of contract, breach of fiduciary duty, fraud, intentional infliction of emotional distress, and medical negligence. For all of these claims, the damages plaintiffs alleged were their fears of HIV infection. For breach of contract and tort actions, such as these, however, a defendant is liable only for consequences that were the proximate result of its conduct and is not liable for speculative damages. See Feldstein v. Guinan, 148 Ill. App. 3d 610, 613 , 499 N.E.2d 535 (1986); DMI, Inc. v. Country Mutual Insurance Co., 82 Ill. App. 3d 113, 115 , 402 N.E.2d 805 (1980). Because plaintiffs failed to allege actual exposure, their fears were based on speculation and cannot be said to have resulted from defendants’ conduct. Consequently, their damages are not legally cognizable. See, e.g., Russaw v. Martin, 221 Ga. App. 683 , 472 S.E.2d 508 (1996) (without proof of actual exposure, the plaintiffs’ fears were unreasonable, and damages cannot be based on imagined possibilities); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (plaintiff failed to establish proximate cause for negligent infliction of emotional distress because he offered no evidence of actual exposure); Funeral Services by Gregory, Inc. v. Bluefield Community Hospital, 186 W. Va. 424 , 413 S.E.2d 79 (1991), rev’d on other grounds, Courtney v. Courtney, 190 W. Va. 126 , 437 S.E.2d 436 (1993) (plaintiff had no legally compensable injury because, without proof of actual exposure, his fear was unreasonable); Drury v. Baptist Memorial Hospital System, 933 S.W.2d 668 (Tex. Ct. App. 1996) (a fear of HIV infection that would support an award for mental anguish must be reasonably based on circumstances showing actual exposure to a disease-causing agent; because plaintiff failed to allege actual exposure, her fear was unreasonable and, therefore, she had no damages).

Although the majority suggests a standard that approaches the "actual exposure” requirement, I believe that a lesser standard is insufficient. We should require proof of actual exposure because, in addition to other public policy benefits, this standard is easier to understand and to apply. The majority states that a plaintiff should be able to recover for a fear of HIV infection if she shows she had a reasonable fear of a "substantial, medically verifiable possibility of contracting AIDS” (289 Ill. App. 3d at 49). I endorse the "actual exposure” standard because I fear that differing opinions as to what is a "substantial possibility” of HIV infection will lead to increased litigation and divergent results in cases involving a fear of HIV infection.

The "actual exposure” requirement is particularly helpful to controlling litigation in cases such as this, where much of the damages plaintiffs allege arise from the letter they received. We should commend health care providers for taking the initiative to advise patients of a risk of HIV infection, not penalize them for doing so. By requiring proof of actual exposure, courts establish a principle of law that encourages timely notification, which is critical in controlling further spread of the virus. See also 410 ILCS 325/5.5(b) (West 1992) (providing for the notification of patients of an HIV-infected health care provider). The uncertainty associated with a lesser standard, on the other hand, may discourage notification.

For these reasons, I specially concur.