Brzoska v. Olson

• Decision Date: 25 May 1995
• Docket Number: 1994,No. 284,284
• Citation: 668 A.2d 1355
• Parties: Robert BRZOSKA and Mary Ann Brzoska, his wife, et al., Plaintiffs Below, Appellants, v. Edward P. OLSON, Administrator of the Estate of Raymond P. Owens, Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1355

668 A.2d 1355

64 USLW 2224

Robert BRZOSKA and Mary Ann Brzoska, his wife, et al., Plaintiffs Below, Appellants, v. Edward P. OLSON, Administrator of the Estate of Raymond P.

Owens, Defendant Below, Appellee.

No. 284, 1994.

Supreme Court of Delaware.

Submitted: May 25, 1995.

Decided: Sept. 8, 1995.

Appeal from Superior Court. Affirmed in Part, Reversed in Part, and Remanded.

Marla Rosoff Eskin (argued), and Thomas C. Crumplar, Jacobs & Crumplar, P.A., Wilmington, for Appellants.

Mark L. Reardon (argued), William F. Taylor, Jr. and W. Christopher Componovo, Elzufon, Austin & Drexler, P.A., Wilmington, for Appellee.

F.L. Peter Stone, Connolly, Bove, Lodge & Hutz, Wilmington, for Amicus Curiae, Delaware State Dental Society.

Before VEASEY, C.J., WALSH, HOLLAND, and BERGER, JJ., and DUFFY, Justice, Retired, ^* constituting the Court en Banc.

WALSH, Justice, for the majority:

In this appeal from the Superior Court, we confront the question of whether a patient may recover damages for treatment by a health care provider afflicted with Acquired Immunodeficiency Syndrome ("AIDS") absent a showing of a resultant physical injury or exposure to disease. The appellants, plaintiffs below, are 38 former patients of Dr. Raymond P. Owens, a Wilmington dentist who died of AIDS on March 1, 1991. In an action brought against Edward P. Olson, the administrator of Dr. Owens' estate, the plaintiffs sought recovery under theories of negligence, battery, and misrepresentation. After limited discovery, the Superior Court granted summary judgment in favor of Dr. Owens' estate, ruling that, in the absence of a showing of physical harm, plaintiffs were not entitled to recover under any theory advanced. Plaintiffs have appealed only the rulings disallowing recovery on the claims of battery and misrepresentation.

We conclude that the Superior Court correctly ruled that, under the circumstances of Dr. Owens' treatment, there can be no recovery for fear of contracting a disease in the absence of a showing that any of the plaintiffs had suffered physical harm. Specifically, plaintiffs cannot recover under battery as a matter of law because they could not show that their alleged offense was reasonable in the absence of being actually exposed to a disease-causing agent. We further conclude, however, that, as to those plaintiffs to whom Dr. Owens made a direct representation that he did not suffer from AIDS and thereafter rendered treatment, the facts of record, when viewed from the plaintiffs' perspective, preclude the grant of summary judgment, if recovery is limited to economic damages.

Accordingly, we affirm in part and reverse in part the decision of the Superior Court and remand for further proceedings the claim of fraudulent representation as to those plaintiffs who have standing to assert such a claim.

I

Prior to his death, Dr. Owens had been engaged in the general practice of dentistry in the Wilmington area for almost 30 years. Although plaintiffs have alleged that Dr. Owens was aware that he had AIDS for at least ten years, it is clear from the record that it was in March, 1989, that Dr. Owens was advised by his physician that he was HIV-positive. ¹ Dr. Owens continued to practice, but his condition had deteriorated by the summer of 1990. Toward the end of 1990, he exhibited open lesions, weakness, and memory loss. In February, 1991, his physician recommended that Dr. Owens discontinue his practice because of deteriorating health. Shortly thereafter, on February 23, Dr. Owens was hospitalized. He remained hospitalized until his death on March 1, 1991.

Shortly after Dr. Owens' death, the Delaware Division of Public Health (the "Division") undertook an evaluation of Dr. Owens' practice and records, in part to determine if his patients had been placed at risk through exposure to HIV. The Division determined that Dr. Owens' equipment, sterilization procedures and precautionary methods were better than average and that he had ceased doing surgery since being diagnosed as HIV-positive in 1989. ² Although the Division determined that the risk of patient exposure was "very small," it notified all patients treated by Dr. Owens from the time of his 1989 diagnosis until his death that their dentist had died from AIDS and that there was a possibility that they were exposed to HIV. The Division also advised the former patients that they could participate in a free program of HIV testing and counseling. Some patients availed themselves of the Division's testing while others secured independent testing. Of the 630 former patients of Dr. Owens who have been tested, none have tested positive for HIV. ³

On March 21, 1991, patient Thomas S. Neuberger ("Neuberger") filed a proposed class action complaint in the Court of Chancery seeking injunctive relief and the impressment of a constructive trust on the assets of the Owens' estate and applicable professional liability insurance for the benefit of patients who might develop AIDS. The Court of Chancery ruled, however, that the claims alleged essentially sounded in tort and that an adequate remedy for damages existed at law. Thereafter, the 38 plaintiffs constituting the putative class in the Chancery Court action filed the underlying action in the Superior Court.

In their Superior Court action, the plaintiffs alleged that each of them had been patients of Dr. Owens in 1990 or 1991. Each claimed to have received treatment, including teeth extraction, reconstruction and cleaning, during which their gums bled. The plaintiffs alleged that Dr. Owens was HIV-positive and that he exhibited open lesions and memory loss at the time of such treatment. The plaintiffs did not allege the contraction of any physical ailment or injury as a result of their treatment, but claimed to have suffered "mental anguish" from past and future fear of contracting AIDS. They also alleged embarrassment in going for medical testing to a State clinic which they found to be "an uncomfortable environment." Plaintiffs sought compensation and punitive damages for mental anguish, the cost of medical testing and monitoring, and reimbursement for monies paid to Dr. Owens for dental treatment.

Plaintiffs' theory of recovery was cast in five counts: (i) negligence; (ii) recklessness; (iii) battery; (iv) fraudulent misrepresentation; and (v) false pretenses. The negligence and recklessness claims, in essence, alleged professional malpractice, while the battery count sought recovery for "unconsented" and "offensive touching." The fraudulent misrepresentation and false pretense claims both related to various representations and statements made by Dr. Owens to certain patients who, upon inquiry as to his condition, were provided with allegedly deceptive answers concerning his health.

After brief discovery, the Owens defendants ⁴ ("Owens") moved for summary judgment on two distinct grounds: (1) that plaintiffs' claims were barred since they were not asserted against the estate within the eight month period after the decedent's death as provided in 12 Del.C. § 2102(a); and (2) that all plaintiffs' claims, under whatever theory articulated, did not state a cognizable claim for damages in the absence of a showing of physical injury. The Superior Court ruled that the complaint was not time-barred in view of the initiation of the Chancery action within the statutory period. That ruling has not been appealed. In reliance upon this Court's decision in Mergenthaler v. Asbestos Corp. of Am., Del.Supr., 480 A.2d 647 (1984), however, the Superior Court ruled that plaintiffs had no basis for recovery for "fear of AIDS" in the absence of an underlying physical injury. Accordingly, the court dismissed all counts of the complaint. Plaintiffs have appealed only the Superior Court ruling with regard to the battery and misrepresentation claims.

II

Our review of the Superior Court's grant of summary judgment is plenary. We consider de novo the factual record before the trial court and examine anew the legal conclusions to determine whether error occurred in applying pertinent legal standards. Arnold v. Society for Savings Bancorp, Inc., Del.Supr., 650 A.2d 1270, 1278 (1994).

A.

Preliminarily, we note that, in limiting their appeal to the Superior Court's rulings on the battery and misrepresentation claims, the plaintiffs have precluded from our concern the applicable standard of medical-dental care which our jurisprudence imparts. See 18 Del.C. § 6801(7). Thus, we do not address the extent, if any, Dr. Owens, as a Delaware health care provider, may have deviated from "the applicable standard of care in the specific circumstances of the case." 18 Del.C. § 6853. Our analysis of the treatment which plaintiffs received in a dental/patient relationship is narrowly confined to the common law standards that govern the intentional tort of battery and the mixed tort/contractual standards that define misrepresentation. We also note that, in their complaint and briefing, plaintiffs have failed to specify what form of battery was experienced by each individual plaintiff, except to the extent that all plaintiffs believed themselves subject to some form of unconsented, offensive touching. This is not a class action and each individual plaintiff must prove specific harm. Nonetheless, in order to test the validity of the battery claims for summary judgment purposes we assume that each plaintiff alleges a subjective sense of offense. With respect to the claim for misrepresentation, to the extent it is viable, the claim would be limited to those patients, not specified by plaintiffs, who directly communicated with Dr. Owens concerning his condition.

B.

Under the Restatement (Second) of Torts, "[a]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person ... and (b) a harmful contact with the person of the other directly or indirectly results." Restatement (Second) of Torts...