Madrid v. Lincoln County Medical Center

• Decision Date: 03 October 1995
• Docket Number: No. 15940,15940
• Citation: 121 N.M. 133,909 P.2d 14,1995 NMCA 126
• Parties: , 64 USLW 2432 Sonia MADRID, Plaintiff-Appellant, v. LINCOLN COUNTY MEDICAL CENTER, a New Mexico Corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 14

909 P.2d 14

121 N.M. 133, 64 USLW 2432

Sonia MADRID, Plaintiff-Appellant, v. LINCOLN COUNTY MEDICAL CENTER, a New Mexico Corporation Defendant-Appellee.

No. 15940.

Court of Appeals of New Mexico.

Oct. 3, 1995.

Certiorari Granted Dec. 7, 1995.

[121 N.M. 135] Alexander A. Wold, Jr., Walter M. Hart III, Alexander A. Wold, Jr., P.C., Albuquerque, for Plaintiff-Appellant.

W. Robert Lasater, Jr., Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for Defendant-Appellee.

OPINION

PICKARD, Judge.

1. Sonia Madrid (Plaintiff) appeals the district court order granting summary judgment to Lincoln County Medical Center (Defendant) on Plaintiff's claim that Defendant's negligence caused her to suffer emotional distress and other damages by exposing her to bodily fluids that may have been infectious. As we cannot say that Plaintiff's action is barred as a matter of law on the facts of this case, we reverse and remand to the trial court for further proceedings.

2. Summary judgment is proper if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. SCRA 1986, 1-056(C) (Repl.1992); Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986). Defendant argues that, even under the facts as alleged, Plaintiff is not entitled to relief. See Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 513, 602 P.2d 195, 197 (Ct.App.1979) (even if facts are undisputed, the reviewing court must determine if a basis is present to decide the issues as a matter of law). Plaintiff argues that there are genuine issues of material fact to be determined by the jury as factfinder, precluding summary judgment. See Kelly v. Montoya, 81 N.M. 591, 595, 470 P.2d 563, 567 (Ct.App.1970) (if reasonable minds might differ, summary judgment is inappropriate). In reviewing the district court's grant of summary judgment, we view the facts in the light most favorable to Plaintiff as the party opposing summary judgment, drawing all inferences in favor of her. Baer v. Regents of Univ. of Cal., 118 N.M. 685, 688, 884 P.2d 841, 844 (Ct.App.1994).

3. On September 28, 1992, Plaintiff was transporting medical samples from Defendant hospital to laboratories in Albuquerque for analysis. During transport of the samples Plaintiff was splashed on her hands and elsewhere with a bloody fluid. Two to four separate medical sample containers were wet with bloody fluid and could have contributed part of their contents to the bloody fluid that splashed on Plaintiff. At the time of the incident, Plaintiff had unhealed paper cuts on her hands which came into contact with the bloody fluid. Based on widespread warnings and publicity regarding AIDS, Plaintiff knew that AIDS could be transmitted by contact with blood and other bodily fluids.

4. About two months after the incident, Plaintiff was told that a woman from whom one of the samples had been taken had been tested and that the test was negative. Plaintiff informed Defendant that she believed that more than one test was required to determine whether a person had HIV. She said her belief was based on the number of tests she was instructed to undergo by her doctor in order to determine whether she had contracted HIV from being splashed with the bloody fluid. She also informed Defendant that more than one sample was involved in the splashing. Despite Defendant's assurances that the matter would be looked into, Plaintiff was not told that the tested patient was the only one whose sample had leaked and continued to believe that more than one sample had contacted her until Defendant, in connection with its motion for summary judgment, filed an affidavit on July 29, 1994, indicating otherwise.

5. Defendant submitted the following materials in support of its motion for summary judgment:

6. (1) The affidavit of a medical technician employed by Defendant who was contacted on October 6, 1992, to obtain a test of the patient from whom the pathology specimen that was involved in the incident was obtained.

7. (2) The affidavit of a laboratory assistant supervisor involved in inspecting the leaking medical samples at the laboratory on the evening of September 28, 1992. When Plaintiff arrived on that date she indicated that the specimen containers she was transporting from Defendant had leaked. The affiant then retrieved the large plastic bag of specimens from the back of Plaintiff's car. When he opened the plastic bag, two coolers at the bottom of the bag were inverted. By drying the tissue biopsy containers and checking them for leaks, the affiant determined that a placenta had leaked fluid from its container, that it was the only specimen that had leaked in that cooler, and that the specimens in the other inverted cooler had not leaked.

8. (3) Defendant also submitted the materials Plaintiff provided to Defendant in response to interrogatories showing the medical services and costs Plaintiff incurred after the splashing incident. Plaintiff, on the advice of a physician, was inoculated against and tested for hepatitis A and B and tested for HIV the day after exposure and at various physician-recommended time intervals between September 29, 1992, and April 14, 1993. All tests on Plaintiff for hepatitis and HIV were negative.

9. In response to Defendant's motion for summary judgment, Plaintiff filed a response and opposing affidavit stating, among other things, that following her exposure to the bloody medical samples a doctor told her that she should be tested for the AIDS virus on a periodic basis "for at least one (1) year following the incident of September 28, 1992." Similarly, a physician's assistant told her she "would need to be tested for the AIDS virus for a period of six (6) months to one year at least."

10. Neither party pointed us to, and we were not able to find, any evidence in this record pertaining to the basic currently known medical facts on HIV and AIDS, such as the means of transmission, the methods and accuracy of testing, and the widespread public knowledge about the deadly consequences once HIV and AIDS are contracted. The basic current medical facts, however, are laid out in case precedent in other jurisdictions that have considered questions of recovery in situations similar to the facts of this case, and for purposes of this opinion, we take judicial notice of them. See SCRA 1986, 11-201 (Repl.1994); see also Faya v. Almaraz, 329 Md. 435, 620 A.2d 327, 331-33 (1993).

11. HIV is a virus that kills white blood cells, leaving the infected person vulnerable to a host of parasitic diseases such as pneumonia, at which point the infected person is usually diagnosed as suffering from "full-blown" AIDS. See Benjamin R. v. Orkin Exterminating Co., 182 W.Va. 615, 390 S.E.2d 814, 815 n. 2 (1990). HIV is transmitted by exposing one's bloodstream to certain bodily fluids of a person infected with HIV. Faya, 620 A.2d at 332. While such exposure usually is accomplished through activities such as unprotected sexual intercourse, needle sharing, or the use of contaminated blood products, Ordway v. County of Suffolk, 154 Misc.2d 269, 583 N.Y.S.2d 1014, 1016 (Sup.Ct.1992), it can also be accomplished by exposing an open wound to bodily fluid infected with HIV. Faya, 620 A.2d at 332. Once infected with HIV, a person may not show symptoms of AIDS for seven to ten years, but "[i]t is extremely unlikely that a patient who tests HIV-negative more than six months after a potential exposure will contract the disease as a result of that exposure." Burk v. Sage Prods., Inc., 747 F.Supp. 285, 288 (E.D.Pa.1990) (mem.). Current tests are over ninety-nine percent accurate. K.A.C. v. Benson, 527 N.W.2d 553, 557 n. 5 (Minn.1995). Ninety-five percent of HIV-infected individuals will test HIV positive within six months of the date of exposure. Id. Therefore after six months of testing, "if the test results are negative for HIV antibodies, there is a relative certainty that there has been no exposure to HIV." Ivan Yip, Note, Aidsphobia and the "Window of Anxiety": Enlightened Reasoning or Concession to Irrational Fear?, Brook.L. Rev. 461, 470 (1994). There is no known cure for AIDS, and the life expectancy for a person who has developed full-blown AIDS is generally about two years. Benjamin R., 390 S.E.2d at 815 n. 2. More than one million adults in North America are infected with HIV. Yip, supra, at 468. In the last ten years, the federal and state governments, as well as private organizations, have widely disseminated information about the modes of transmission and the effects of AIDS, so much so that these facts are generally known to the public. See Castro v. New York Life Ins. Co., 153 Misc.2d 1, 588 N.Y.S.2d 695, 698 (Sup.Ct.1991).

12. Hepatitis B may also be life threatening. Similarly, like AIDS, hepatitis B may be contracted through a mixing of human blood, serum, body secretions, or fluids. Rosas v. Workers' Compensation Appeals Bd., 16 Cal.App.4th 1692, 20 Cal.Rptr.2d 778, 780 (1993) (hepatitis B may be spread by infected blood or blood products); Sperling v. Industrial Comm'n, 171 Ill.App.3d 714, 121 Ill.Dec. 633, 635, 525 N.E.2d 940, 942 (1988) (infection may result from exposure to patients' tissue and body fluids); Sclafani v. Peter S. Cusimano, Inc., 130 Mich.App. 728, 344 N.W.2d 347, 348 (1983) (exposure to hepatitis B may result through contact with blood or serum).

13. The question before us is whether Plaintiff should be allowed to go to the jury to prove that she has suffered emotional distress and other damages, including costs of medical testing, resulting from being splashed with a bloody fluid on unhealed cuts on her hands when medical samples, which were packaged by Defendant and which Plaintiff was transporting in connection with her job to laboratories for analysis, leaked. For purposes of this opinion, in light of the standard of review, we accept Plaintiff's assertions that she did not know that the patient from...