Faya v. Almaraz

• Decision Date: 01 September 1991
• Docket Number: Nos. 143,144,s. 143
• Citation: 620 A.2d 327,329 Md. 435
• Parties: , 61 USLW 2554, 3 NDLR P 295 Sonja FAYA v. Betty ALMARAZ, Personal Representative of the Estate of Rudolph Almaraz et al. Perry Mahoney ROSSI et vir. v. Betty ALMARAZ, Personal Representative of the Estate of Rudolph Almaraz et al. ,
• Court: Maryland Court of Appeals

Page 435

329 Md. 435

620 A.2d 327, 61 USLW 2554, 3 NDLR P 295

Sonja FAYA v. Betty ALMARAZ, Personal Representative of the Estate of

Rudolph Almaraz et al.

Perry Mahoney ROSSI et vir. v. Betty ALMARAZ, Personal Representative of the Estate of

Rudolph Almaraz et al.

Nos. 143, 144, Sept. Term, 1991.

Court of Appeals of Maryland.

March 9, 1993.

Harry B. Siegel (Joel Marc Abramson, Law Offices of Joel Marc Abramson, all on brief), Columbia, for appellant.

Deborah Byrnes (William B. Whiteford, Whiteford, Taylor, & Preston, all on brief), Towson, Paul F. Strain (Jana Howard Carey, David J. Heubeck, Mitchell Y. Mirviss, Venable, Baetjer & Howard, all on brief), Baltimore, for appellees.

Jonathan Schochor (Philip C. Federico, Kerry D. Staton, Schochor, Federico and Staton, PA, all on brief), Baltimore, for appellant in No. 144.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

These companion cases present the important question whether a surgeon infected with the AIDS virus has a legal duty to inform patients of that condition before operating upon them and, failing that, whether a patient's fear of having contracted the AIDS virus from the infected surgeon constitutes a legally compensable injury where the patient has not shown HIV-positive status.

I

Central to an understanding of these cases are the nature of the acquired immune deficiency syndrome (AIDS) and its relationship to the human immunodeficiency virus (HIV or "the AIDS virus"). First isolated and identified by scientists in 1983, HIV is a retrovirus that attacks the human immune system. The virus invades host cells, notably certain lymphocytes, replicates itself, weakens the immune system, and ultimately destroys the body's capacity to ward off disease.

HIV's presence is detected by a laboratory blood test for antibodies to the virus. The virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally. HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or birth. See Jonathan N. Weber & Robin A. Weiss, HIV Infection: The Cellular Picture, Scientific American, October 1988, at 100-109; William A. Haseltine & Flossie Wong-Staal, The Molecular Biology of the AIDS Virus, Scientific American, October 1988, at 52-62; Jay A. Levy, Human Immunodeficiency Viruses and the Pathogenesis of AIDS, 261 J.Am.Med.Ass'n 2997, 2998-3001 (1989); Thomas R. O'Brien et al., Testing for Antibodies to Human Immunodeficiency Virus Type 2 in the United States, Morbidity and Mortality Weekly Report, July 17, 1992, Vol. 41, No. RR-12; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:05-1:07, 1:24-1:34 (1991).

AIDS, in turn, is the condition that eventually results from an immune system gravely impaired by HIV. Medical studies have indicated that most people who carry the virus will progress to AIDS. AIDS patients by definition are profoundly immunocompromised; that is, they are prone to any number of diseases and opportunistic infections that a person with a healthy immune system might otherwise resist. AIDS is thus the acute clinical phase of immune dysfunction. Among the prevalent "AIDS-defining" diagnoses are Kaposi's sarcoma, a rare cancer; pneumocystis carinii pneumonia; cytomegalovirus infections of the eye and gastrointestinal tract; mycobacterium avium-intracellulare, a rare type of tuberculosis; and severe, prolonged yeast infections or herpes. See Institute of Medicine/National Academy of Science, Confronting AIDS: Directions for Public Health, Health Care and Research (1986) and Confronting AIDS: Update 1988 (1988); Robert R. Redfield & Donald S. Burke, HIV Infection: The Clinical Picture, Scientific American, October 1988, at 90-98; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:10-1:23 (1991). AIDS is invariably fatal.

II

Dr. Rudolf Almaraz, an oncological surgeon specializing in breast cancer with operative privileges at the Johns Hopkins Hospital (Hopkins) in Baltimore, knew himself to be HIV-positive, i.e. a carrier of the HIV virus, since 1986. On October 7, 1988, Almaraz performed a partial mastectomy and axillary dissection on Sonja Faya at Hopkins. He removed an axillary hematoma from Faya the following March. On November 14, 1989, again at Hopkins, Almaraz surgically excised a benign lump from the breast of Perry Mahoney Rossi. The therapeutic outcome of these operations is not in dispute.

On October 27, 1989, Almaraz was first diagnosed as suffering from cytomegalovirus retinitis, the eye infection signaling full-blown AIDS. That diagnosis was confirmed by a second ophthalmologist on November 17, 1989. Thus, as well as knowing his HIV-positive status throughout the period in question, Almaraz knew that he had AIDS prior to the Rossi operation.

Almaraz gave up his practice of medicine on March 1, 1990. He terminated his association with Hopkins in June of that year. He died of AIDS on November 16, 1990. Faya and Rossi learned of their physician's illness for the first time from a local newspaper on or about December 6, 1990, well over a year after Rossi's operation and twenty months after Faya's last contact with Almaraz. Both Faya and Rossi immediately underwent blood tests for the AIDS virus, which came back negative for both. Nevertheless, by December 11 Sonja Faya, Perry Mahoney Rossi, and her husband, Dennis T. Rossi (appellants), filed suit against Almaraz's estate, his Maryland professional association business entity, and Hopkins (appellees) for compensatory and punitive damages.

III

In their separate actions filed in the Circuit Court for Baltimore City, the appellants, in a multiplicity of counts, alleged various wrongful acts by Dr. Almaraz and Hopkins. ¹ Common to both complaints were counts alleging negligence, negligent failure to obtain the patients' informed consent, fraud, and intentional infliction of emotional distress. To these Faya added counts for negligent misrepresentation and breach of contract. The Rossi complaint, as amended, contained further counts alleging loss of consortium, breach of fiduciary duty, and battery.

The gist of the complaints was that Almaraz acted wrongfully in operating on the two women without first telling them that he was HIV-positive (and, later, ill from AIDS proper), and that Hopkins was culpable for permitting him to do so. More specifically, appellants alleged that at the time of the consultations and surgeries, Almaraz, knowing of his illness, failed to inform them of any risk of contracting HIV that might result from his performance of the surgical procedures. They alluded to the possibility of a puncture or laceration through the protective garments worn by the surgeon and a consequent commingling of his blood with their blood. They claimed that by undergoing their operations in ignorance of Almaraz's illness, they were exposed to a hazard they would otherwise have avoided by withholding their consent, namely, a risk of AIDS attendant upon invasive surgery.

Both Faya and Rossi alleged that the hospital failed independently to take steps, such as the suspension of Dr. Almaraz's surgical privileges, to prevent him from operating on unsuspecting patients, or to adequately obtain informed consent from such patients. They further imputed to Hopkins vicarious liability for Almaraz's conduct, alleging that the physician acted as the hospital's agent or employee.

Appellants averred in their complaints that as a proximate result of the operations and their subsequent discovery of the alleged wrongdoing by Almaraz and Hopkins, they incurred injuries in the form of exposure to HIV and risk of AIDS, physical injury and financial cost resulting from surveillance blood testing for HIV antibodies, pain, fear, anxiety, grief, nervous shock, severe emotional distress, headache and sleeplessness.

Appellees filed motions to dismiss the complaints pursuant to Maryland Rule 2-322 on the ground that appellants had failed to state a claim upon which relief could be granted. The representatives of Dr. Almaraz asserted that the physician owed no duty to disclose his ailment as part of the doctor-patient exchange leading to informed consent. Hopkins contended, in the main, that it had no duty to investigate and ascertain Almaraz's HIV status; the hospital added that the obligations imposed by the informed consent doctrine did not extend to it in any case. The appellees further averred that the complaints were legally deficient in that appellants failed to allege that the AIDS virus entered their bodies as a result of surgery, and that the claimed injuries were not legally compensable because they rested on fear of a risk that never materialized.

The court (Kaplan, J.) dismissed both complaints in their entirety. In so doing, it concluded that Faya and the Rossis had failed to allege a legally compensable injury, and that their counts must therefore fail as a matter of law. The court first held that appellants had failed to plead sufficient allegations of exposure to the AIDS virus. Judge Kaplan reasoned:

"Because there are no reported cases of transmission of AIDS from a surgeon to a patient, such transmission is only a theoretical possibility when proper barrier techniques are employed....

Plaintiff[s] [have] not alleged that Dr. Almaraz failed to use proper barrier techniques. Furthermore, Plaintiff[s] [have] not alleged that any incident or accident occurred during surgery that would have caused Dr. Almaraz's blood to enter [their bodies]."

The trial court next observed that Ms. Faya and Mrs. Rossi had tested HIV-negative, that is, free of the AIDS virus, in early December...