Brown v. New York City Health and Hospitals Corp.

• Decision Date: 15 October 1996
• Citation: 225 A.D.2d 36,648 N.Y.S.2d 880
• Parties: , 65 USLW 2335, 12 IER Cases 1394 Lillian BROWN, Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 880

648 N.Y.S.2d 880

225 A.D.2d 36, 65 USLW 2335, 12 IER

Cases 1394

Lillian BROWN, Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Oct. 15, 1996.

Paul A. Crotty, Corporation Counsel, New York City (Pamela Seider Dolgow and Linda H. Young, of counsel), for appellants.

Bob M. Finkin, Forest Hills (Warren S. Hecht, of counsel), for respondent.

Before MILLER, J.P., and O'BRIEN, GOLDSTEIN and McGINITY, JJ.

O'BRIEN, Justice.

In this appeal, we consider the elements of a cause of action to recover damages for the negligent infliction of emotional distress caused by the fear of contracting Acquired Immune Deficiency Syndrome (hereinafter AIDS), commonly referred to as an "AIDS phobia" claim, and the effect of the plaintiff's refusal to be tested for the AIDS virus on her claim for damages.

I

On December 8, 1990, the plaintiff, Lillian Brown, was the assistant head nurse in the pediatrics ward of Queens General Hospital (hereinafter the hospital), which was owned and operated by the defendant New York City Health and Hospitals Corporation. During her shift that night and into the next morning, the plaintiff was responsible for the care of nine infants, including "Baby C." Hospital records indicated that Baby C. was "HIV positive", that is, she had tested positive for the human immunodeficiency virus (hereinafter HIV) which causes AIDS. The defendants Dr. Dafney Cadur, a second-year resident, and Dr. Karen Tizer, a first-year resident, were responsible for the treatment of Baby C. during the plaintiff's shift.

At about 5:30 A.M. on the morning of December 9, 1990, the plaintiff was changing Baby C.'s diaper when an angiocath stylet (a type of needle) which had been left in the crib penetrated her right thumb to the bone. The stylet was immediately removed and discarded. The plaintiff was treated in the hospital emergency room with drugs for exposure to hepatitis and was advised to take AZT tablets as a preventive measure against AIDS. She was given an HIV-antibody test, which was negative. The next day, a physician's assistant employed by the hospital allegedly advised the plaintiff to assume that she was HIV positive until tests showed otherwise, to take AZT tablets, to use condoms when having intercourse with her husband, and to avoid kissing family members or sharing utensils with them. The plaintiff took the AZT tablets for six months and then discontinued the medication because of its side effects.

In August 1991 the plaintiff commenced this action to recover damages for the negligent infliction of emotional distress caused by her fear of contracting AIDS. She sought damages for the period from 1990, when the incident occurred, to the year 2005, on the theory that, if she was free of the disease by that point, there would be no further risk of developing the disease.

Two years later, in November 1993 the plaintiff was examined by a physician retained by the defendants who determined that she showed no signs of HIV-associated disease. However, the plaintiff refused to undergo a blood test to determine if she was HIV positive. The defendants subsequently moved in June 1994 to compel the plaintiff to submit to such testing, contending that, since it was now almost four years since the incident, an HIV-antibody test would establish whether the plaintiff was at risk of developing AIDS and, consequently, whether her fear of developing the disease was rational. According to the defendants, there was a consensus in the medical community that 95% of all persons who will ultimately test positive for the virus will do so within six months of exposure and that current tests for the presence of the virus were 99% reliable.

The plaintiff's attorney argued in opposition to the defendants' motion that there was no compelling need to order an HIV-antibody test because the defendants would be able to state to the jury that there was no evidence that the plaintiff contracted the virus which causes AIDS. Counsel further noted that the gravamen of the plaintiff's claim for damages was that she had suffered a psychological injury as a result of the defendants' negligence, which was not dependent upon a determination that she had actually contracted the virus. Moreover, counsel suggested that the plaintiff would not be able to cope emotionally with a positive test result, which would be tantamount to a death sentence.

In support of the claim that requiring her to submit to an HIV-antibody test would be emotionally harmful, the plaintiff submitted a report from a psychologist she consulted in the spring of 1993. The psychologist described the changes in the plaintiff's life caused by her fear that she was infected by the virus, such as physical problems, depression, sleep disturbances, fatigue, and less intimacy with her family, and he concluded that she suffered from post-traumatic stress disorder as a result of the incident. He suggested that, by refusing to be tested, the plaintiff was able to believe that she was not infected, and thus was able to continue to function. According to the psychologist, the plaintiff feared that, if she tested positive for HIV, she "would just give up".

In February 1995 the Supreme Court denied the defendants' motion to compel the plaintiff to submit to testing (Brown v. New York City Health & Hosps. Corp., 164 Misc.2d 441, 624 N.Y.S.2d 768), concluding that there was no compelling need to require the plaintiff to undergo an HIV-antibody test. Implicit in the plaintiff's claim of "AIDS phobia" was the concession that there was no definitive evidence that she ever contracted the virus. Thus, her cause of action was based on exposure to the virus, not on the actual transmission of the infection, and the damages she sought were for mental distress resulting from her fear of contracting the disease, not for injuries caused by the disease itself. The court indicated that it would have granted the defendants' motion if the plaintiff claimed that she was actually infected with the virus, as she would then have placed her HIV status in issue.

Relying on various publications, the court also discussed in its decision the efficacy of testing for infection by the virus via a blood test which detects the presence of HIV antibodies. Although the plaintiff tested negative for HIV antibodies immediately after the incident, the court noted that HIV antibodies take time to develop after exposure. HIV antibodies usually develop by six months, and the test was considered highly accurate after six months. An accepted scientific means for ruling out infection was to test for the HIV antibodies at 3, 6, 9, and 12 months after exposure. Accordingly, the court concluded that the plaintiff may have contributed to her anxiety by refusing to be tested. However, whether her refusal to be tested violated her responsibility to mitigate damages presented an issue for trial. Finally, the court suggested that, even if the plaintiff tested negative now, she might have a claim for damages because she lived with the fear of AIDS for a period of time.

In May 1995 the defendants moved to renew and reargue the prior motion to compel the plaintiff to submit to an HIV-antibody test, for summary judgment on the ground that there was no rational basis for the plaintiff's claim of AIDS phobia, or for partial summary judgment dismissing all claims of mental distress beyond a six-month period after the date of the incident.

In support of their demand that the plaintiff undergo an HIV-antibody test, the defendants argued that the plaintiff was required to establish a reasonable basis for her fear, and a negative test could result in the dismissal of all of her claims. The defendants requested an order directing the plaintiff to submit to an HIV-antibody test and dismissing her claims pursuant to CPLR 3126(3) if she failed to comply.

Further, the defendants contended that they were entitled to summary judgment because a cause of action for "AIDS phobia" requires a showing that the plaintiff was actually exposed to the virus, and the evidence established that she was not. There was no evidence that the stylet had ever been in contact with Baby C.'s blood. Although the plaintiff stated at her deposition that a blood sample was drawn from Baby C. during her December 8 to December 9, 1990, shift, she did not see either of the defendant doctors actually draw blood from Baby C., and each of the doctors stated that she had not drawn blood from or performed any invasive procedures on Baby C. during the plaintiff's shift.

The defendants argued that, based on Baby C.'s hospital record, blood was last drawn from her on the morning of December 7, 1990, which would mean that more than 40 hours had elapsed before the plaintiff was stuck by the needle. Assuming that certain notes made by Dr. Cadur in Baby C.'s record might indicate that blood was drawn on the morning of December 8, 1990, that was still 20 to 24 hours before the plaintiff was stuck with the needle. The defendants submitted an affidavit from Dr. Thomas Nash, an internist specializing in infectious diseases, who stated that HIV cannot live on a surface exposed to air for more than a few hours. Therefore, if the needle was not exposed to the infant's blood for at least 20 hours, to a reasonable degree of medical certainty the plaintiff could not have been exposed to infectious HIV. Moreover, Dr. Tizer stated at her deposition that she assured the plaintiff immediately following the accident that, since no blood work was done on Baby C. during her shift, the needle was probably there for over 20 hours, and the virus could not live that long in the open air. Thus, absent a positive HIV-antibody test, the defendants argued that the plaintiff could not establish that she was actually exposed to the virus.

In the alternative, the defendants argued that the court should grant partial summary...