Hartwig v. Oregon Trail Eye Clinic

• Citation: 580 N.W.2d 86,254 Neb. 777
• Decision Date: 19 June 1998
• Docket Number: No. S-95-1025,S-95-1025
• Parties: Penny M. HARTWIG, Appellant, v. OREGON TRAIL EYE CLINIC et al., Appellees.
• Court: Supreme Court of Nebraska

Page 86

580 N.W.2d 86

254 Neb. 777

Penny M. HARTWIG, Appellant, v. OREGON TRAIL EYE CLINIC et al., Appellees.

No. S-95-1025.

Supreme Court of Nebraska.

June 19, 1998.

Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

3. Negligence: Damages: Mental Distress. Where a physical injury has been sustained, a plaintiff may recover damages for mental suffering and anxiety reasonably resulting from such physical injury.

4. Actions: Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence: Proximate Cause. Foreseeability that affects proximate cause relates to the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from the defendant's alleged breach of duty.

6. Negligence: Damages: Mental Distress: Proof. A plaintiff may adduce proof and potentially recover damages for the mental anguish of reasonably fearing AIDS resulting from a physical injury when the plaintiff may have been exposed, via a medically sufficient channel of transmission, to the tissue, blood, or body fluid of another in circumstances where the identity of the patient upon whom the contaminated needle or instrument was used is unknown, and when it is impossible or impracticable to ascertain whether any such tissue, blood, or body fluid may be HIV positive.

Michael W. Meister, of Meister & Segrist, Scottsbluff, for appellant.

John K. Sorensen, of Sorensen & Zimmerman, P.C., Scottsbluff, for appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, Justice.

INTRODUCTION

Appellant, Penny M. Hartwig, was stuck by two used hypodermic needles that were negligently placed in an ordinary trash receptacle in the medical clinic she was cleaning. Hartwig brought a negligence action against appellees, Oregon Trail Eye Clinic, Dr. Judson C. Martin, and Dr. Thomas J. Roussel (Clinic), seeking to recover damages for, inter alia, the anxiety and mental suffering that resulted from her fear of testing positive for human immunodeficiency virus (HIV) and contracting acquired immunodeficiency syndrome (AIDS) as a result of the Clinic's negligence. The trial court sustained the Clinic's pretrial motion in limine and prohibited Hartwig from presenting evidence to the jury regarding her mental anguish because the court determined that in order to recover damages for mental anguish, Hartwig was required to prove actual exposure to HIV, not merely potential exposure. After the jury returned a $3,000 verdict for Hartwig's physical pain and suffering, Hartwig filed a motion for new trial. Upon denial of the motion for new trial, Hartwig appealed.

The question presented by this case is whether a plaintiff who sustains a minimal physical injury, such as a needle stick, when such physical injury was caused by the defendant's negligence, may recover damages for anxiety and mental suffering occasioned by the plaintiff's fear of testing HIV positive and contracting AIDS, absent a showing of actual exposure to blood or body fluid infected with HIV. For the reasons that follow, we answer this question in the affirmative, and we accordingly reverse the order of the trial court denying Hartwig's motion for new trial and remand Hartwig's causes of action for a new trial limited solely to the issue of damages.

FACTUAL BACKGROUND

Hartwig's employer, Merry Maids, entered into an agreement with the Clinic to provide cleaning services for its medical facility. Hartwig was assigned to clean the Clinic on the first night of the contract. In order to collect the Clinic's nonmedical waste, Hartwig carried a large trash bag from room to room, collected the small trash bags from the individual waste receptacles, and placed the small trash bags into the large trash bag. After collecting a few small trash bags, Hartwig picked up the large collector trash bag, and in so doing, it inadvertently swung against her thigh. Hartwig instantly felt a stinging sensation and, looking down, observed a needle protruding from the area of the trash bag that contacted her leg.

Hartwig told a Clinic employee that she had been stuck with a needle disposed of in the nonmedical waste. The Clinic employee treated Hartwig's injury by swabbing the injured area with alcohol and placing a Band-Aid over the puncture. Hartwig said that the Clinic employee then asked her to retrieve the needle from the trash bag. As Hartwig reached into the trash bag to recover the needle, she was stuck by another needle. The Clinic employee treated this injury in the same manner as the other. Hartwig testified that both needle sticks drew a small amount of blood. Hartwig finished cleaning the Clinic that evening without further incident.

Two days later, Hartwig received a telephone call from a registered nurse employed by Regional West Medical Center in the area of epidemiology and infectious disease control. The nurse had been informed by the Clinic of Hartwig's accident and contacted Hartwig so that they could discuss the risks associated with a needle stick. The nurse told Hartwig that she was at risk for HIV and hepatitis B infection because of the needle stick. The nurse provided Hartwig with pamphlets and other information concerning additional risks associated with a needle stick, such as the fact that sexual In order to treat her possible exposure to infectious disease, Hartwig received four different injections over a period of time, vaccinating her against hepatitis and tetanus. Hartwig was also told that she would have to submit to four blood tests to determine whether she had been infected with HIV. The first test was conducted immediately to determine whether Hartwig was HIV positive prior to sustaining her injury at the Clinic. The subsequent tests were to be performed 3 months, 6 months, and 1 year from the time of the accident. A negative test after 3 months indicated a 95-percent probability that Hartwig was not infected with HIV, and a negative test after 6 months indicated a 99 1/2-percent probability that Hartwig was not infected. Ultimately, Hartwig did not test positive for HIV on any occasion.

intercourse with her husband would place him at risk of HIV infection and that her children as well as her husband were at risk of infection through exposure to her body fluids.

The Clinic was unable to positively ascertain the identity of the patient or patients upon whom the needles were used. The record is not clear as to why, but it is uncontroverted that the needles which caused Hartwig's injuries were never tested to determine whether they were contaminated with HIV-infected tissue, blood, or body fluid.

Hartwig filed suit against the Clinic to recover damages for her physical injuries consequent to the needle sticks as well as the anxiety and mental suffering resulting from her fear of HIV infection. Assigned to Hartwig was her husband's loss-of-consortium claim. Prior to trial, the district court sustained the Clinic's motion in limine to exclude testimony concerning Hartwig's mental anguish occasioned by her fear that she had indeed been infected with HIV. The court concluded that to recover such damages, Hartwig would have to prove actual exposure to HIV.

By way of offers of proof at trial, Hartwig offered the deposition testimony of her husband, Roger Hartwig, who, if allowed to testify, would have stated that during the 6-month period after her accident, Hartwig would disappear into a room and cry for hours on end, was impatient with their children, and showed no affection for him or their children. He would also have testified that Hartwig was shunned by their friends because of the friends' irrational fear of HIV infection. Hartwig also offered the deposition testimony of her psychologist, Dr. Charles Howard, who, if allowed to testify, would have told the jury that Hartwig was under extreme stress and anxiety as a result of her fear of contracting AIDS. Howard also would have testified that Hartwig's counseling sessions ceased shortly after her 3-month blood test came back HIV negative, since much of Hartwig's anxiety dissipated with the knowledge that there was a 95-percent probability that she was not infected with HIV. The trial court sustained the Clinic's objection to each of Hartwig's offers of proof.

At the close of the evidence, the trial court sustained Hartwig's motion for a directed verdict as to the Clinic's negligence. However, regarding the issue of damages, the court instructed the jury that it

may not award any damages to [Hartwig] for anxiety, emotional distress or mental suffering alleged to have been sustained or incurred by her or her husband, Roger Hartwig, as the result of fear of contracting AIDS or fear or anxiety of testing positive for the presence of the HIV virus or other infectious disease.

The jury returned a $3,000 verdict in favor of Hartwig, and judgment was entered accordingly. Hartwig's motion for new trial was overruled, and she timely appealed. Because of the issue presented, we granted Hartwig's petition to bypass and transferred the case to our docket.

ASSIGNMENTS OF ERROR

Hartwig assigns as error the trial court's (1) refusing to allow Hartwig to present evidence in regard to mental anguish and emotional distress resulting from her reasonable fear of contracting AIDS caused by the Clinic's negligence; (2) instructing the jury that it could not award damages to Hartwig for anxiety, emotional distress, or

mental suffering sustained by her or her...