Ordway v. County of Suffolk

• Decision Date: 21 April 1992
• Citation: 154 Misc.2d 269,583 N.Y.S.2d 1014
• Parties: , 60 USLW 2726 Craig Bradford ORDWAY and Sandra Ordway, Plaintiffs, v. The COUNTY OF SUFFOLK, Defendant and Third Party Plaintiff. Huntington Hospital, Third Party Defendant.
• Court: New York Supreme Court

Page 1014

583 N.Y.S.2d 1014

154 Misc.2d 269, 60 USLW 2726

Craig Bradford ORDWAY and Sandra Ordway, Plaintiffs, v. The COUNTY OF SUFFOLK, Defendant and Third Party Plaintiff Huntington Hospital, Third Party Defendant.

Supreme Court, Suffolk County.

April 21, 1992.

Agoglia, Fassberg & Magee, P.C., Mineola, for plaintiffs--Ordway.

Furey, Furey, Lapping, DeMaria & Schwarz, P.C., Hempstead, for Huntington Hosp.

E. Thomas Boyle, Hauppauge, for County of Suffolk.

WILLIAM L. UNDERWOOD, Jr., Justice.

The case at bar requires the resolution of two issues: (1) whether "fear of contracting AIDS" is a viable cause of action, and if so, under what circumstances, and (2) the degree of reticence imposed on law enforcement personnel by New York Public Health Law Art. 27-F.

On November 28, 1989, a person (hereinafter referred to as the patient) was arrested by Suffolk County Police Officers for burglary. The patient was placed in detention at the Second Precinct in Huntington. During his arrest processing, the patient complained of pain in his wrist and was transported by the Police to the emergency room of Huntington Hospital. Hospital personnel examined the patient and interviewed him concerning his past medical history. The plaintiff, Dr. Ordway, examined the patient and performed a surgical operation on him. On December 5, 1989, plaintiff, Dr. Ordway, performed another operation on the patient. On December 8, 1989, plaintiff learned that the patient had tested positive for the HIV virus for the preceding four years. During his operations on the patient, Dr. Ordway states that he wore "a surgical scrub suit consisting of pants, a shirt, sterile gown, sterile mask and surgical gloves" (affidavit of Dr. Ordway dated June 5, 1991). Plaintiff claims that had he known of the patient's condition he would have taken "certain necessary precautions" including the use of "a full face shield or goggles, a specific type of respirator or breathing protector, double gloves, changing gown every 30 minutes and knee-high boots" (Id. at page 4, para 18). Because these precautions were not taken, Dr. Ordway asserts that he believes he has contracted the AIDS Virus. As a result of the long gestation period of the disease it may be five years or more before Dr. Ordway can confirm if he is HIV-1 positive. This causes the plaintiffs to suffer "severe emotional fright which can be diagnosed as HIV phobia ..." (plaintiffs' verified complaint, para 12). It is uncertain as to whether the attending Police Officers knew of the patient's condition. Plaintiffs commenced this action via service of summons and complaint against the defendant, Suffolk County. Suffolk County commenced the instant third-party action against third-party defendant, Huntington Hospital. Both Suffolk County and Huntington Hospital have moved for summary judgment.

Summary judgment is a drastic remedy which should only be granted when the movant demonstrates the absence of a material issue of fact (Benincasa v. Garrubbo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [1988]. This extraordinary remedy "is rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances" (Johannsdottir v. Kohn, 90 A.D.2d 842, 456 N.Y.S.2d 86, citing Wilson v. Sponable, 81 A.D.2d 1, 5, 439 N.Y.S.2d 549; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3212:8, p. 430). "Even where facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law ..." (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. However, in the case at bar the salient facts are undisputed and our application of statute reveals that the defendant, Suffolk County, exhibited "exemplary prudence [under] the circumstances" (Id. at 365, 362 N.Y.S.2d 131, 320 N.E.2d 853 citing 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03, op. cit.).

Although it is not specifically stated as such, plaintiffs' cause of action is founded on the theory of negligent infliction of emotional distress. The initial question for the Court to address is whether fear of contracting AIDS comes within this tort theory and, if so, under what circumstances.

Courts have been circumspect in allowing recovery for negligent infliction of emotional distress because of the danger that a plethora of vexatious, frivolous lawsuits would result from the theory's wide-spread use (Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 [1958]. To prevent the abuse of the litigation process by frivolous actions, "psychic injury" was initially allowed as a theory of recovery only if there were attendant physical injuries (Id. at 21, 176 N.Y.S.2d 996, 152 N.E.2d 249; Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 [1896]. In Battalla v. State, 10 N.Y.2d 237, 239, 219 N.Y.S.2d 34, 176 N.E.2d 729 [1961], the need for accompanying physical injuries was dispensed with (Id. at 239, 219 N.Y.S.2d 34, 176 N.E.2d 729). In place of the discarded physical injury requirement of Mitchell supra, each case was examined by the Court to determine if the facts alleged contained a "guarantee of genuineness" which insured that the claim was not ephemeral (Johnson v. State, 37 N.Y.2d 378, 384, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975]. Despite the absence of a rigid requirement of physical injury, however, the indicia of legitimacy invariably includes "some form of physical trauma, however minimal, stemming from the defendants' negligence" (Lancellotti v. Howard, 155 A.D.2d 588, 590, 547 N.Y.S.2d 654 [2d Dept.1989]. In addition to suffering some "psychic harm" the plaintiff must establish that he was owed a duty of care by the defendant, that the defendant negligently breached this duty, and that the defendant's negligent act was the proximate cause of the psychic injury (Martinez v. Long Island Jewish Hillside Medical Center, 70 N.Y.2d 697, 699, 518 N.Y.S.2d 955, 512 N.E.2d 538 [1987]; Johnson v. State, supra 37 N.Y.2d at 381, 372 N.Y.S.2d 638, 334 N.E.2d 590).

Does "AIDS phobia" constitute a viable psychic injury for the purposes of an action based on negligent infliction of emotional distress? AIDS (Acquired Immune Deficiency Syndrome) is caused by HIV (Human Immunodeficiency Virus) and at the present time is ultimately fatal ("Aids Law: The Impact of Aids on American Schools and Prisons", 1987 Annual Survey of American Law, 117, 119). HIV may be transmitted through the "use of contaminated blood, blood products, or needles; through [sexual] intercourse with an infected partner ... and from an infected pregnant woman to her fetus" (Id. at 119). It is not considered a contagious disease because it can't be spread through casual contact (Id. at 119). Caselaw discussed infra shows that fear of this ailment can form the basis of a cause of action.

There have been very few cases in New York (or other jurisdictions) discussing "Aids Phobia" as a cause of action. In Doe v. Doe, 136 Misc.2d 1015, 519 N.Y.S.2d 595 (Supreme, Kings 1987), recovery for negligent infliction of "Aids-phobia" was denied because, inter alia, there was no specific incident on which the claim was based and there was no proof that the defendant had AIDS. Hare v. State, 173 A.D.2d 523, 570 N.Y.S.2d 125 [2d Dept.1991], involved a prison inmate who bit an x-ray technician attempting to assist a corrections officer in subduing the inmate. In denying the claim the Court noted that there was no proof that the inmate was suffering from AIDS and although the claimant had lost weight and exhibited cold symptoms, he still tested negative for HIV. In Castro v. N.Y. Life Ins. Co., 153 Misc.2d 1, 588 N.Y.S.2d 695 (Sup.N.Y.Co.1991), the cause of action was sustained. The Court observed (for the...