Barrett v. Danbury Hosp.

• Decision Date: 21 February 1995
• Docket Number: No. 14935,14935
• Citation: 654 A.2d 748,232 Conn. 242
• Court: Connecticut Supreme Court
• Parties: , 63 USLW 2576 Allen BARRETT et al. v. DANBURY HOSPITAL et al.

Page 748

654 A.2d 748

232 Conn. 242, 63 USLW 2576

Allen BARRETT et al. v. DANBURY HOSPITAL et al.

No. 14935.

Supreme Court of Connecticut.

Argued Nov. 2, 1994.

Decided Feb. 21, 1995.

Steven R. Smart, with whom was Sally J. Katz, for appellants (plaintiffs).

John F. Costa, for appellees (defendants).

Before CALLAHAN, BORDEN, BERDON, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

The principal issue in this appeal is whether, under the circumstances of this case, the fear of the named plaintiff, Allen Barrett, of contracting or transmitting acquired immune deficiency syndrome (AIDS) or another blood-borne disease, was a compensable injury giving rise to a cause of action sounding in negligence or medical malpractice. The plaintiffs, Allen Barrett (Barrett) and his wife, Mary Barrett, brought this action in six counts against the defendants, Danbury Hospital (hospital) and Victor Estaba, a physician, alleging three theories of recovery against each defendant: (1) negligence; (2) the doctrine of res ipsa loquitur; and (3) loss of consortium. The defendants moved for summary judgment on all counts. The trial court granted the motion on the basis that the plaintiffs had failed to establish a compensable claim for "AIDS phobia," and rendered judgment for the defendants accordingly.

The plaintiffs appeal ¹ from the summary judgment, claiming that the trial court improperly: (1) required the plaintiffs to establish that Barrett actually had been exposed to AIDS or another blood-borne disease; and (2) denied the plaintiffs' request for leave to amend their complaint. We affirm the judgment of the trial court.

The trial court granted summary judgment based on the following undisputed facts. On June 13, 1990, Barrett came to the hospital complaining of abdominal pain. He was placed on a stretcher in the emergency room for an examination. As a result of the examination, Estaba diagnosed Barrett's complaint as a gallstone condition and administered an injection to alleviate the pain. During the course of his examination of Barrett, Estaba became aware that Barrett was sitting in blood. In an effort to locate the source of the blood, Estaba performed a rectal examination of Barrett. Estaba was unable to locate the source of the blood, however, and subsequently performed a second rectal examination. Visual inspection and microscopic testing performed as part of these rectal examinations indicated that no blood was present in Barrett's rectum. In fact, the blood came through two slits in the vinyl pad that covered the stretcher upon which Barrett was sitting.

The plaintiffs alleged in their complaint that, as a result of Barrett's contact with the blood from the stretcher and its alleged introduction into his rectum, he has suffered and will continue to suffer from anxiety and fear that he may contract HIV, ² hepatitis or another blood-borne, life-threatening disease. ³ They further alleged that Barrett is fearful of transmitting such a disease to his wife, and that he has thereby been deprived of his wife's consortium. Additionally, Mary Barrett alleged deprivation of her husband's consortium.

The defendants' motion for summary judgment was supported by the affidavits of Estaba, Sara Tomanio, Frank A. Bia, and Mary Ellen Ginnetti. Estaba stated the following in his affidavit. Barrett entered the emergency room complaining of pain and provided a history of previous gall bladder trouble. During the course of Estaba's examination of Barrett, Estaba observed blood on the stretcher and decided to perform a rectal examination to determine if the blood was emanating from Barrett's rectum. The stool yielded by the examination did not appear bloody, and a test of the stool for blood was negative. Estaba repeated the examination and test to double check the results, and again the test was negative. The test specifically was performed in a manner so as to prevent any contact or transmission of blood. The fact that the stool tested negative for blood indicated that the examinations had not transmitted any blood from the stretcher to Barrett's rectum.

Tomanio's affidavit stated the following. She was Barrett's treating nurse in the emergency room. Estaba performed a rectal examination of Barrett and ordered laboratory studies and tests. Estaba subsequently noticed blood on the stretcher sheet and performed another rectal examination. Each of these examinations was negative for the presence of blood. The spots of blood on the sheet were "about the size of a half-dollar and a somewhat more oblong shape of approximately of one to two inches at its greatest measurement," and only the patient's underwear and the sheet beneath his buttocks were streaked with bright red secretions.

Bia stated the following in his affidavit. He is a physician who is board certified in internal medicine and the subspecialty of infectious diseases. He is currently an "associate professor of medicine (infectious diseases) and laboratory medicine" at Yale University School of Medicine, and the attending physician at the Yale AIDS Care Program. Bia reviewed the emergency room medical record regarding Barrett, the affidavits of Estaba, Ginnetti and Tomanio, and the plaintiffs' amended complaint. On the basis of this review, he is convinced that "[g]ood practice dictated that an investigation be made via rectal examination to evaluate whether the patient's GI tract was the source of the blood." Bia further stated that "[t]he guaiac negative stool specimens clearly demonstrate that no blood was introduced into the patient's rectum. The guaiac evaluation is very sensitive to extremely small amounts of blood and would have been positive if blood had been emanating from the patient's rectum, or alternatively, blood had been introduced into the plaintiff's rectum, via the actions of Dr. Estaba." The contact of blood with the patient's undergarments or hospital gown is insufficient to transmit HIV to a patient. He concluded that "[t]he chances of Mr. Barrett contracting HIV or AIDS from such an incident as described can be assessed as nil."

The affidavit of Ginnetti discloses the following. She was the risk manager of the hospital. Her review of all emergency room records for the twenty-nine hours prior to Barrett's examination revealed that none of the cases during that period detailed a medical history of AIDS, an infection with HIV or AIDS-related syndrome.

The plaintiffs' opposition to the motion was supported by Barrett's hospital record and by the affidavits of Barrett and Ann Dion, the director of the emergency room at Lawrence and Memorial Hospital in New London. The hospital record details Barrett's medical complaint and the actions taken by Estaba and other hospital personnel, including the rectal examinations and their negative results for blood. At the bottom of the record is the following handwritten note. "Note: Blood was found to be leaking through broken vinyl area on stretcher mattress cushion. The [patient] and his wife noticed this since it permeated to [the] sheet he was laying on!"

Dion's affidavit disclosed the following. She is a registered nurse licensed in the state of Connecticut. She has been an emergency room nurse for eighteen years, is currently the nursing director of ambulatory services at Lawrence and Memorial Hospital and serves as president of the Connecticut Emergency Nurses Association. After reviewing the medical record, the affidavits of Estaba, Tomanio, Ginnetti, Bia and the amended complaint, she concluded that the hospital fell below the standard of care in Connecticut for maintaining equipment by causing the stretcher to be in a defective and dangerous condition. She also concluded that, in her professional opinion, "having dealt with hundreds of patients over the years ... a patient sitting in a pool of foreign blood could reasonably fear that he might contract the AIDS virus, hepatitis or other blood product transmitted life threatening disease." It is also Dion's opinion that the documentation of the examination of Barrett fell below the required standard of care because it failed to include the times the rectal exams were done and did not contain a description of the patient's buttocks, particularly whether it was examined for fissures or scratches. Dion also offered her opinion that the blood on the stretcher could have been there for longer than the period researched by Ginnetti.

Barrett claimed the following in his affidavit. During the course of Estaba's examination, Estaba rolled him over to give him an injection for his pain and discovered that his "backside was covered with blood." Estaba performed a rectal examination, but failed to find the cause or source of the blood. Barrett was given a "johnny coat" and clean sheets were put on the stretcher. He was returned to the stretcher, and felt moisture on his buttocks. He noticed "a large bloody area" on his johnny coat and on the sheet covering the stretcher at the location of his buttocks. Estaba performed another rectal examination, but did not find the cause or source of the blood. At some point during the course of the examination, he was given an injection in his buttocks. After getting dressed, Barrett realized that the blood was not his own. He removed the sheet from the stretcher and saw blood oozing from the stretcher. "The blood was the blood of a prior patient or patients." The affidavit concludes with the following: "When I saw the blood and realized that it had covered my backside and that Dr. Estaba had performed two rectal examinations and introduced the blood into my rectum, I became shocked and distraught and fearful that I might contract the AIDS virus, hepatitis or another blood product transmitted life threatening disease and that I might infect my wife, Mary Barrett."

The plaintiffs also filed a request to amend their complaint in several respects, which the trial court denied. The trial court concluded that the...