Kerins v. Hartley

• Decision Date: 30 July 1993
• Docket Number: No. B,B
• Citation: 17 Cal.App.4th 713,21 Cal.Rptr.2d 621
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 17 Cal.App.4th 713 17 Cal.App.4th 713, 62 USLW 2087, 4 NDLR P 102 Jean R. KERINS, Plaintiff and Appellant, v. Mary Kathleen HARTLEY, as Special Administratrix, etc., et al., Defendants and Respondents. 065917.

Page 621

21 Cal.Rptr.2d 621

Previously published at 17 Cal.App.4th 713

17 Cal.App.4th 713, 62 USLW 2087, 4 NDLR P 102

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.

July 30, 1993.

As Modified on Denial of Rehearing Aug. 27, 1993.

Review Granted Oct. 28, 1993.

Review Transferred Feb. 24, 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.

FUKUTO, Associate Justice.

Introduction

In a lawsuit filed against defendants and respondents, Dr. James S. Gordon, M.D., and his partners in medical practice, Dr. Marki J. Knox, M.D., Dr. 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 appeals 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 AIDS (Acquired Immune Deficiency Syndrome) on July 11, 1990. Although the facts are relatively simple, the case raises questions of first impression for the State of California.

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 defendants, 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. ¹

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.

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. Appellant contended, and offered admissions and medical records to prove that Dr. Gordon was already suffering from AIDS and/or illnesses symptomatic of AIDS at the time of the surgery and knew or reasonably should have known of his illness.

Appellant's pleadings and supporting declarations aver that she went to Dr. Gordon and WMG because she knew of their commitment to patient-involved decision-making 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 pre-surgery interview, she specifically asked Dr. Gordon, " 'How is your health?' " In response, " 'he physically jumped back and stared at [Plaintiff] for several seconds' " and finally answered, " 'Well, I go to the gym regularly and I run every morning.' " Appellant claims that the response was deliberately deceitful in the face of Dr. Gordon's admissions that he knew he was in a high risk group for AIDS, entries in his medical records showing 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, and admissions that he underwent T-Cell panel testing about the time of appellant's surgery.

Respondents and Dr. Gordon denied having discussions with appellant in which she expressed fear of contracting AIDS from blood transfusions or in which she directly asked Dr. Gordon whether he was healthy.

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, ³ 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 of a total of 4,703 patients studied 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 Morbidity and Mortality Weekly Report, a publication of the U.S. Department of Health and Human Services Centers for Disease Control (CDC). (Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures (1991) 40 CDC Morbidity and Mortality Weekly Report 1 [hereafter CDC Recommendations].) The report documents one known case of an infected dentist transmitting AIDS to five patients, and concludes, inter alia, that investigations documenting a low risk of HIV or AIDS transmission from infected health care worker (HCW) to patient are inconclusive because a "precise estimate of the risk of HIV transmission from infected HCWs 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 HCWs."

The CDC's July 1991 report also makes recommendations for prevention of transmission of HIV by HCWs including, but not limited to, the following: "HCWs 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 HCW's seropositivity before they undergo exposure-prone invasive procedures. [Fn. omitted.]" (CDC Recommendations, supra, at p. 5.) Exposure-prone invasive procedures are defined to include "digital palpation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site." (CDC Recommendations, supra, at p. 4.) "Obstetric/gynecological" procedures such as those performed by Dr. Gordon on appellant are classified as "exposure-prone" under current CDC Guidelines. (Gostin, CDC Guidelines on HIV or HBV-Positive Health Care Professionals Performing Exposure-Prone Invasive Procedures (1991) 19 Law, Medicine & Health Care 140.) ⁴

To show the reasonableness of her fear of developing AIDS, appellant also offered excerpts from the deposition testimony of Dr. William T. O'Connor, M.D. According to Dr. O'Connor, certain persons will continue to test negative for HIV antibodies for prolonged periods of time after exposure even though they have been infected with the virus; therefore, even if appellant's test results were negative for the next 25 years, she could not be 100 percent certain that Dr. Gordon did not infect her on November 5, 1986.

Following a lengthy hearing, the trial court granted respondents' motion for summary judgment. Appellant filed a motion for...