Kerins v. Hartley

• Court: California Court of Appeals
• Writing for the Court: FUKUTO; BOREN, P.J., and NOTT
• Citation: Kerins v. Hartley, 33 Cal.Rptr.2d 172, 27 Cal.App.4th 1062 (Cal. App. 1994)
• Decision Date: 23 August 1994
• Docket Number: No. B,B
• Parties: , 63 USLW 2183 Jean R. KERINS, Plaintiff and Appellant, v. Mary Kathleen HARTLEY, as Special Administratrix, etc., et al., Defendants and Respondents. 065917.

Page 172

33 Cal.Rptr.2d 172

27 Cal.App.4th 1062, 63 USLW 2183

Jean R. KERINS, Plaintiff and Appellant, v. Mary Kathleen HARTLEY, as Special Administratrix, etc., et al., Defendants and Respondents.

No. B 065917.

Court of Appeal, Second District, Division 2, California.

Aug. 23, 1994.

Alvin L. Pittman, Los Angeles, for plaintiff and appellant.

Kirtland & Packard, Harold J. Hunter, Jr., Los Angeles, Hagenbaugh & Murphy, David F. Berry, Raymond R. Moore, Glendale, Greines, Martin, Stein & Richland, Irving H. Greines and Barbara W. Ravitz, Beverly Hills, for defendants and respondents.

Catherine I. Hanson, Alice P. Mead, San Francisco, Jon W. Davidson, Peter V. Lee, Los Angeles, Wallin, Kress, Reisman, Price & Pettit, Stanton J. Price, Santa Monica, Munger, Tolles & Olson and Allen M. Katz, Los Angeles, as amici curiae on behalf of defendants and respondents.

Introduction

FUKUTO, Associate Justice.

In a lawsuit filed against defendants and respondents, James S. Gordon, M.D., and his partners in medical practice, Marki J. Knox, M.D., Karen Blanchard, M.D. and Associates, Inc., and the Women's Medical Group of Santa Monica, a California general partnership, plaintiff and appellant, Jean R. Kerins, sought general and punitive damages, including health care expenses, lost past and future earnings, and compensation for severe mental anguish and emotional distress, which she allegedly suffered upon discovering that Dr. Gordon performed surgery upon her to remove a large uterine fibroid tumor at a time when he was infected with human immunodeficiency virus (HIV). Ms. Kerins appealed from the trial court's order granting summary judgment in favor of respondents, who now include the special administratrix of the estate of James Gordon, substituted as a party defendant and respondent following Dr. Gordon's death due to acquired immune deficiency syndrome (AIDS) on July 11, 1990.

This court reversed the judgment. Without the benefit of the Supreme Court's decision in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (hereafter Potter), we rejected the approach of several other jurisdictions which consider emotional distress damages due to fear of AIDS legally noncompensable unless the plaintiff alleges and proves actual exposure, and it is more probable than not that the plaintiff will actually develop the disease. ¹ We took the approach utilized in Faya v. Almaraz (1993) 329 Md. 435, 620 A.2d 327, which allows recovery of emotional distress damages due to the fear of developing AIDS for the reasonable window of anxiety--the period between which the plaintiff learns of the health care worker's or surgeon's HIV seropositivity, and receives fear-relieving information, such as proof of nonexposure, or HIV-negative test results. We also held that a legally cognizable cause of action for battery was established by appellant's assertion that her consent to surgery was conditioned upon the surgeon's good health, and Dr. Gordon intentionally violated the "good health" condition of her consent by performing an invasive surgical procedure without disclosing his HIV-positive status, and the possible onset of symptoms of AIDS.

The Supreme Court granted respondents' petition for review, then transferred the matter to this court "with directions to vacate its decision and to reconsider the cause in light of Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 [25 Cal.Rptr.2d 550, 863 P.2d 795]." Upon reconsideration, we affirm summary judgment in favor of respondents.

The Facts

The few undisputed facts established by the parties' pleadings include the following. In June 1986, appellant was experiencing severe abdominal pain. She consulted Dr. Gordon, one of the physicians of Women's Medical Group of Santa Monica (WMG), about the problem. Dr. Gordon's diagnosis of a probable fibroid tumor was confirmed by ultrasound. After a conservative approach to treatment proved ineffective, and the tumor continued to grow, appellant was advised to undergo surgery.

On November 5, 1986, Dr. Gordon performed surgery on appellant, consisting of an exploratory laparotomy, lysis of peritoneal adhesions, multiple myomectomies, uterine reconstruction, and repair of the broad ligament. The detailed operative report of the surgery does not indicate that any cuts were sustained by Dr. Gordon, or that there were any other unusual occurrences during the lengthy surgery.

On November 10, 1986, Dr. Gordon received the results of T-Cell panel blood tests administered on dates uncertain between November 3 and 6, 1986. The tests indicated that Dr. Gordon was infected with HIV, the probable causative agent of AIDS. Shortly thereafter, Dr. Gordon informed the other respondents of his test results, but continued actively practicing medicine with WMG.

At a disputed point in time, Dr. Gordon developed AIDS. On April 21, 1988, he announced his illness on a televised news broadcast seen by appellant. The announcement was broadcast in the context of a news story about an AIDS discrimination lawsuit filed by Dr. Gordon against the other respondents, who had refused to permit him to return to his surgical practice upon recovering from an AIDS-related illness. The televised broadcast also featured statements by Dr. Gordon's partners, Drs. Knox and Blanchard, commenting on the frequency with which surgeons cut or poked themselves with knives or needles during surgical procedures, criticizing Dr. Gordon's refusal to obtain informed consent for surgery by advising patients of his illness, and explaining that their patients must be protected from even the remote risk of exposure to AIDS.

Within a day of the news broadcast, appellant underwent a test for HIV. Approximately two weeks later, she received test results negative for the presence of HIV antibodies.

It was undisputed that using testing methods available in April 1988, 95 percent of HIV-infected individuals tested positive for HIV antibodies within six months of the date of transmission. ²

At all times relevant to the instant lawsuit, AIDS was known to be fatal in 100 percent of cases and had no known cure.

Dr. Gordon denied, under oath, that he cut or poked himself during appellant's surgery. Appellant admits that she can offer no evidence to the contrary. The statistical data considered by the trial court establishes only a miniscule risk of percutaneous injury and HIV transmission from doctor to patient during surgery. ³

Little else about the case is undisputed. Dr. Gordon and his colleagues denied having actual knowledge of Dr. Gordon's HIV-positive status until after November 10, 1986. Dr. Gordon admitted in discovery that he knew he was in a high risk group for AIDS, and entries in his medical records showed that he frequently sought medical attention in late 1985 through 1986 for a variety of ordinarily common ailments including colds, flu, and a skin rash.

Appellant's pleadings and supporting declarations aver that she went to Dr. Gordon and WMG because she knew of their commitment to patient-involved decisionmaking and informed consent. She expressed particular concern to Dr. Gordon about the danger of contracting AIDS from blood transfusions and was advised to and did store some of her own blood in case the need for transfusion of blood arose during surgery. According to appellant, in a presurgery interview, she specifically asked Dr. Gordon, " 'How is your health?' " Dr. Gordon advised her that he went to a gym regularly and jogged every morning. He did not mention the possibility that he was infected with HIV or AIDS.

Respondents and Dr. Gordon denied having discussions with appellant in which she expressed fear of contracting AIDS from blood transfusions or directly asked about Dr. Gordon's health.

The magnitude and reasonableness of appellant's claimed emotional distress due to her unabated fear of developing AIDS despite negative HIV test results was also contested by respondents. Based on data from scientific articles and journals, ⁴ respondents asserted in their statement of undisputed material facts that the risk of HIV transmission with actual percutaneous exposure to the blood of an HIV-infected individual is approximately 0.3 percent; that there were no known instances of a medical doctor transmitting the HIV virus to a patient; and that in a study of a total of 4,703 patients of HIV-positive surgeons, there were no documented cases of HIV transmission from infected surgeon to patient.

Appellant did not dispute the existence of such studies; rather, she disputed their relevance. She argued the genuineness and objective reasonableness of her fear of developing AIDS based on the July 12, 1991, issue of the CDC Morbidity and Mortality Weekly Report, supra. (CDC Recommendations, supra.) The report documented one known case of an infected dentist transmitting AIDS to five patients, and concluded, inter alia, that investigations documenting a low risk of HIV or AIDS transmission from infected health care worker to patient were inconclusive because a "precise estimate of the risk of HIV transmission from infected [health care workers] to patients can be determined only after careful evaluation of a substantially larger number of patients whose exposure-prone procedures have been performed by HIV-infected [health care workers]." (CDC Recommendations, supra, at p 4.)

The CDC's July 1991 report also made recommendations for prevention of transmission of HIV by health care workers including, but not limited to, the following: "[Health care workers] who are infected with HIV ... should not perform exposure-prone procedures unless they have sought counsel from an expert review panel and been advised under what circumstances, if any, they may continue to perform these procedures. Such circumstances would include notifying prospective patients of the [health care worker's] seropositivity before they undergo exposure-prone invasive...