Lemon v. Stewart, 1982

Decision Date01 September 1995
Docket NumberNo. 1982,1982
Parties, 65 USLW 2256 Surena LEMON, et al. v. Donald W. STEWART, et al. ,
CourtCourt of Special Appeals of Maryland

Thomas C. Summers (Law Office of Peter G. Angelos, on the brief), Baltimore, for appellants.

Kelly Hughes Iverson (Craig B. Merkle and Goodell, DeVries, Leech & Gray, L.L.P., on the brief), Baltimore, for appellee Stewart.

Jennifer S. Pressman and Semmes, Bowen & Semmes, on the brief, Baltimore, for appellee Liberty Medical Center, Inc.

William B. Whiteford, Eric R. Harlan and Whiteford, Taylor & Preston, on the brief, Baltimore, for appellee Maryland Medical.

Argued before WILNER, C.J., and MURPHY and EYLER, JJ.

WILNER, Chief Judge.

This medical malpractice action, which makes its second appearance in this Court, presents two interesting questions of first impression in Maryland: (1) when a patient is diagnosed as positive for HIV or AIDS, does the patient's health care provider have a duty to inform members of the patient's extended family, such as appellants in this case, of the patient's positive HIV/AIDS status; and (2) do such persons have a cause of action against the health care provider for breaching its duty to advise its patient of his or her positive HIV/AIDS status? We shall answer both questions in the negative and therefore affirm the judgment of the trial court.

BACKGROUND

The fourteen appellants, who were plaintiffs below, are persons who are "either related to, or have otherwise had personal contact with" one Herbert Lemon, Sr. They initially sued appellees Donald Stewart, who is a physician, and Liberty Medical Center, Inc. in the Circuit Court for Baltimore City, seeking $5 million apiece in damages because the appellees omitted to inform Mr. Lemon, appropriate health authorities, or appellants that Mr. Lemon was HIV-positive. The amended complaint alleged four causes of action as to each of the appellants--negligence, negligent misrepresentation, negligent infliction of emotional distress, and breach of fiduciary duty.

The court dismissed the amended complaint on the ground that it failed to allege a cause of action upon which relief could be granted. The negligent infliction of emotional distress count was dismissed because the court found that Maryland does not recognize an independent action of that kind. The other claims were dismissed because they were premised on the breach of some duty flowing to the appellants, and the court concluded, as a matter of law, that no such duty existed on the part of appellees to the appellants.

Appellants appealed that judgment. In an unpublished per curiam Opinion, we concluded that, because the claims made by appellants were for medical injury committed by health care providers, they were required to be submitted first to arbitration in accordance with the Maryland Health Claims Arbitration Act, Md.Code Cts. & Jud. Proc. art., §§ 3-2A-01, et seq. Lemon v. Stewart, 103 Md.App. 778 (1995). In responding to appellants' argument that, if no duty existed on the part of the health care providers, there was nothing to arbitrate, we observed that malpractice cases often turn on issues of law, but that did not excuse compliance with the mandatory arbitration process. We noted, in particular, that the proper resolution of the legal issue presented in that case may not be so clear, as the amended complaint was then framed. At p.7 of the slip opinion, we stated:

"In Homer v. Long [90 Md.App. 1, 599 A.2d 1193, cert. denied, 326 Md. 177, 604 A.2d 444 (1992) ], we observed that courts in other States, in some circumstances, have recognized a duty on the part of health care providers to persons other than their patient, at least when the patient has a readily communicable disease that clearly puts those other persons at significant risk. It does not appear that a Maryland appellate court has yet decided that issue, either as a matter of common law or, in this context, as a matter of statutory construction. The issue is fraught with legal, medical, and public policy considerations and should not be decided in a vacuum."

We continued that, before a court is called upon to determine whether, and under what circumstances, a health care provider rendering care to a patient who is HIV-positive or who has developed AIDS has a duty to disclose his patient's condition to other persons, a factual record should be developed demonstrating that the claimant falls within a class that the court would be willing to recognize in any event. We pointed out that the amended complaint then before us failed to indicate with any precision the relationship of the various plaintiffs to Mr. Lemon or the nature of the contacts that each had with him. We thus noted that, even if there were a duty on the part of appellees flowing to persons other than Mr. Lemon, it was not at all clear that such a duty would flow to any of the appellants.

On that basis, we vacated the judgment and remanded the case. We directed the court to stay the proceeding pending the outcome of arbitration proceedings initiated by appellants.

When the case returned to the circuit court, the parties waived arbitration, as the statute allows them to do. Appellants then filed a new complaint in the circuit court. With three principal exceptions, the new complaint mirrors the amended complaint that was before us in the earlier appeal. The first difference is that appellants have added a new defendant--Maryland Medical Laboratory, Inc. A second difference is that the complaint alleges only two causes of action--negligence and negligent misrepresentation; claims for negligent infliction of emotional distress and breach of fiduciary duty have been dropped. Finally, in an apparent effort to satisfy our concern about the nature of the relationship between the individual appellants and Mr. Lemon, the new complaint contains a separate count for each appellant.

FACTUAL ALLEGATIONS

Because this appeal is from a judgment dismissing the complaint, based upon the pleading itself, we shall accept as true those facts well-pleaded in the complaint. Any ambiguity or uncertainty in those allegations, of course, must be construed against appellants. Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d 69 (1991); Faya v. Almaraz, 329 Md. 435, 444, 620 A.2d 327 (1993).

On July 17, 1991, Mr. Lemon, with a history of intravenous drug use, was admitted to Liberty Medical Center, Inc. complaining of slurred speech, expressive aphasia, and right-sided weakness, which appellants claim were suggestive of HIV/AIDS. While at Liberty, Lemon was under the care of Dr. Stewart. A number of tests, mostly neurological in nature, were conducted. On July 19, 1991, an ELISA (Enzyme-Linked Immunosorbent Assay) test was submitted by Liberty to Maryland Medical Laboratory. On July 22, the laboratory reported to Liberty a reactive ratio of 4.34, which is positive for the development of antibodies to the HIV organism. That same day, a Western Blot test was performed; on July 24, the laboratory reported a similar result from that test.

Mr. Lemon was discharged from the hospital on July 21--prior to its receipt of the test results--as HIV negative. His discharge summary, which was not actually prepared until October, incorrectly stated that an HIV study was performed and showed that Lemon was HIV-negative. There is no allegation that Mr. Lemon ever saw the discharge summary or was told anything about his HIV/AIDS status, one way or the other, by any of the three defendants.

Upon his discharge, Mr. Lemon returned to the home of his sister--appellant Surena Lemon--where, for the next nine months, she and the other thirteen appellants cared for him in varying ways. The other appellants included another sister, two brothers, four children, and five nieces or nephews. In the introductory part of the complaint, appellants allege that they each had "daily or frequent" but "varying degrees" of contact with Lemon. Some of them had "direct physical contact with Herbert Lemon's bodily secretions, including sputum and blood." The contact was in the nature of bathing and shaving Mr. Lemon, "assisting in personal hygiene matters," helping him to the rest room, cleaning his room and bed, washing his clothes, transferring him from bed to chair, and carrying him around the house. The "younger plaintiffs," it was alleged, came into contact with him through "expressions of affection, including, but not limited to kissing, touching, hugging, and other familial gestures."

These general allegations are made somewhat more specific in the individual counts. Surena Lemon, for example, alleged that, through bathing Mr. Lemon and changing his diaper, she was exposed to his blood, urine, and feces, as well as fluids from bedsores and from his eyes. Annie Bell Mitchell, another sister, claimed that, through washing, feeding, and otherwise assisting Mr. Lemon, she came into contact with his urine, feces, and other bodily secretions, including blood from cuts. We need not recite the allegations in each of the fourteen counts; suffice it to say that they are generally similar to those already recounted. It is noteworthy, however, that nowhere in the complaint is it alleged that any of the appellants were sexual partners of Mr. Lemon, that they shared needles with him, or that there was, in fact, any direct transmission of his blood to their own.

In the spring of 1992, Mr. Lemon was readmitted to Liberty under the care of Dr. Stewart, and it was then that he was first informed that he had tested positive for HIV/AIDS. "Virtually all" of the appellants were then tested for HIV and found not to have the virus.

The gravamen of the fourteen lawsuits is the "daily fear" that the appellants have that, based upon their exposure to Mr. Lemon during the nine months between his discharge from Liberty in July, 1991, and the revelation of his infected status in the spring of 1992, they may yet...

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6 cases
  • Doe v. Archdiocese of Washington
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...appeal from a judgment dismissing the complaint, we must accept as true all well pleaded facts in the complaint. Lemon v. Stewart, 111 Md.App. 511, 517, 682 A.2d 1177 (1996). See also Md.Rule 2-322(b); Bennett Heating v. NationsBank, 103 Md.App. 749, 757, 654 A.2d 949 (1995), aff'd in part ......
  • Butler-Tulio v. Scroggins
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2001
    ...cases relied upon by appellant run counter to Maryland law. The first Maryland case that appellant relies on is Lemon v. Stewart, 111 Md.App. 511, 682 A.2d 1177 (1996). In Lemon, the issue before us was whether a health care provider has "a duty to inform the members of a patient's extended......
  • Dehn v. Edgecombe, 1536
    • United States
    • Court of Special Appeals of Maryland
    • September 4, 2003
    ...medical context is based primarily on the existence of the physician-patient relationship. (Emphasis supplied). In Lemon v. Stewart, 111 Md.App. 511, 521, 682 A.2d 1177 (1996), Chief Judge Wilner stated for this The common law duty of care owed by a health care provider to diagnose, evaluat......
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    • Maryland Court of Appeals
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    ...358 Md. 354, 367, 749 A.2d 157, 164 (2000); Hoover v. Williamson, 236 Md. 250, 253, 203 A.2d 861, 863 (1964); Lemon v. Stewart, 111 Md.App. 511, 521, 682 A.2d 1177, 1181 (1996). See also Rigelhaupt, What Constitutes Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R.4th 132 (......
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