Johnson v. West Virginia University Hospitals, Inc.

• Decision Date: 13 February 1992
• Docket Number: No. 19678,19678
• Court: West Virginia Supreme Court
• Parties: , 60 USLW 2540, 6 A.L.R.5th 1069 Lofton JOHNSON, Plaintiff Below, Appellee, v. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Defendant Below, Appellant.

Page 889

413 S.E.2d 889

186 W.Va. 648, 60 USLW 2540, 6

A.L.R.5th 1069

Lofton JOHNSON, Plaintiff Below, Appellee, v. WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Defendant Below, Appellant.

No. 19678.

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1991.

Decided Nov. 21, 1991.

Rehearing Denied Feb. 13, 1992.

Syllabus by the Court

1. Damages for emotional distress may be recovered by a plaintiff against a hospital based upon the plaintiff's fear of contracting acquired immune deficiency syndrome (AIDS) if: the plaintiff is not an employee of the hospital but has a duty to assist hospital personnel in dealing with a patient infected with AIDS; the plaintiff's fear is reasonable; the AIDS-infected patient physically injures the plaintiff and such physical injury causes the plaintiff to be exposed to AIDS; and the hospital has failed to follow a regulation which requires it to warn the plaintiff of the fact that the patient has AIDS despite the elapse of sufficient time to warn.

2. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).

3. "An instruction is proper if it is a correct statement of the law and if there is sufficient evidence offered at trial to support it." Syl. pt. 5, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).

4. "An instruction which is not supported by the evidence should be refused." Syl. pt. 3, Lilly v. Taylor, 151 W.Va. 730, 155 S.E.2d 579 (1967).

5. " 'A verdict of a jury should not be set aside on the ground of insufficient evidence, where the sufficiency depends upon the credibility of witnesses and the reasonable inferences which may be drawn from the evidence.' Point 2, Syllabus, Denoff v. Fama, 102 W.Va. 494 [, 135 S.E. 578 (1926) ]." Syl. pt. 1, Raines v. Faulkner, 131 W.Va. 10, 48 S.E.2d 393 (1947).

William C. Gallagher, Timothy F. Cogan, Wheeling, for appellant.

Clark B. Frame, Wesley W. Metheney, J. Michael Benninger, for appellee.

McHUGH, Justice:

This case is before the Court upon the appeal of West Virginia University Hospitals, Inc., the defendant below, from a jury verdict rendered in the Circuit Court of Monongalia County. The appellee and plaintiff below is Lofton Johnson. The verdict against the appellant was in the amount of $2 million, reduced to $1.9 million by the appellee's 5% contributory negligence.

I.

The appellee was a police officer, employed by the West Virginia University Security Police. ¹ On June 2, 1988, a patient was brought to the appellant's hospital. The patient, when he was conscious, was very abusive and combative, used obscene language, and was generally unruly. There were about seven doctors and nurses present in the emergency room where they were tending to the patient. During this time, the patient stated that he was infected with acquired immune deficiency syndrome (AIDS).

Due to the patient's unruly behavior, the appellee was called to the scene. Initially, the appellee only observed the scene, but when the patient's bed fell over and it appeared that the medical personnel needed help in restraining the patient, the appellee attempted to assist. As the appellee was lifting the patient back onto the bed, the patient bit the appellee on the appellee's forearm.

The appellee asserted that at this point, he had not been told by anyone at the hospital that the patient was infected with the AIDS virus although the hospital personnel dealing with the patient knew that he had AIDS. It was only after he had been bitten and was washing out the wound that one of the paramedics informed the appellee that the patient had AIDS.

The appellee filed a suit against the appellant in the Circuit Court of Monongalia County, based on negligence. Specifically, the appellee claimed that the appellant negligently failed to advise him that the patient had AIDS, and that as a result of his exposure to AIDS, the appellee has suffered from emotional distress.

At trial, there was evidence that the patient had bitten himself on the arm, and that the patient's own blood was in and around his mouth when he bit the appellee.

The appellee testified that he had, on previous occasions, assisted in restraining AIDS patients, but it was always the hospital's procedure to inform the restraining officer of such so that proper precautions could be taken. Furthermore, evidence was introduced that the hospital failed to post warning signs at the emergency room pursuant to rules and regulations of the hospital, despite the fact that the attending hospital personnel knew that the patient with whom they were dealing had AIDS. These signs would have warned others that the patient in the hospital room had an infectious disease. The evidence in this case establishes that at least one-half hour elapsed from the time the hospital personnel learned that the patient had AIDS to the time the appellee began assisting with the patient.

Evidence was also introduced during trial that, after the incident, the appellee's wife refused to have sexual relations with the appellee. ² There was also evidence that the appellee's children did not want to be around him, nor did they want their children (the appellee's grandchildren) around him, due to a fear that they may contract AIDS.

Although the appellee is regularly tested for AIDS, he has not contracted the disease. However, the appellee's treating psychologist testified that the appellee suffers from "post traumatic stress disorder," and considers himself a social outcast. There was also testimony that the appellee suffers from sleeplessness, is shunned by co-workers and superiors, and is very uncertain about his future.

As stated previously, the jury returned a verdict in favor of the appellee in the amount of $2 million, reduced to $1.9 million by the appellee's 5% contributory negligence.

Following the jury verdict, the circuit court denied the appellant's motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. This appeal ensued.

II.

In this case, we address a question of damages arising from a disease that has become a serious public health concern over the last decade, AIDS, which is the last phase of human immunodeficiency virus (HIV). ³

The appellant's primary contention is that the damages awarded in this case were improperly speculative and that the jury was not properly instructed on the emotional distress damages. The appellant argues that the trial court should not have denied its motion in limine, which motion would have excluded evidence of the appellee's emotional distress unless the appellee could prove that it was reasonable.

Damages are not recoverable if the related injurious effect is too speculative. See syl. pt. 7, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). However, in this case, the issue is not whether the damages awarded the appellee are speculative. Rather, the damages recovered in this case are for the emotional distress from which the appellee currently suffers. Accordingly, the critical issue in this case concerns whether the emotional distress damages awarded are recoverable under the circumstances of this case.

As a general rule, absent physical injury, there is no allowable recovery for negligent infliction of emotional distress. Prosser and Keeton on the Law of Torts § 54, at 361 (W. Keeton 5th ed. 1984); Restatement (Second) of Torts § 436A (1965).

The Court has recognized this traditional principle: "There can be no recovery in tort for an emotional and mental trouble alone without ascertainable physical injuries arising therefrom, ... through the simple negligence of the defendant[.]" Syl., in part, Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945).

In this case, there is evidence of physical injury. The appellee was bitten on the arm by the appellant's patient. In addition to the wounds inflicted by the bite, the appellee's physical injuries include sleeplessness, loss of appetite, and other physical manifestations accompanying the emotional distress suffered by the appellee. See Allen v. Smith, 179 W.Va. 360, 363, 368 S.E.2d 924, 927 (1988); Harless v. First National Bank, 169 W.Va. 673, 688, 289 S.E.2d 692, 701 (1982); Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 347, 36 S.E.2d 475, 478 (1945).

Other courts have addressed the issue of emotional distress damages arising from a fear of contracting AIDS. In Hare v. State, 173 A.D.2d 523, 570 N.Y.S.2d 125 (1991), a New York appeals court affirmed the lower court's ruling that a plaintiff could not recover damages for emotional distress arising from a fear of AIDS. In Hare, the plaintiff, a hospital employee, was bitten by an inmate who was transferred to the hospital following a suicide attempt. The plaintiff was attempting to subdue the inmate. The Court of Claims of New York denied the plaintiff's claim of emotional distress damages based upon a fear of contracting AIDS because there was no evidence that the inmate was even infected with the AIDS virus. Rather, the inmate who bit the plaintiff in Hare was merely rumored to be suffering from AIDS. Therefore, the plaintiff's claim for emotional distress damages in that case was held to be too remote and speculative.

In Burk v. Sage Products, Inc., 747 F.Supp. 285 (E.D.Pa.1990), the United States District Court for the Eastern District of Pennsylvania recognized that a plaintiff may recover emotional distress damages for fear of AIDS. However, the court also pointed out that before such a recovery may be made, the plaintiff must demonstrate that he or she has been exposed to the disease or cause thereof. The plaintiff in Burk was unable to demonstrate such an exposure,...