Ornstein v. New York City Health and Hosp.

• Decision Date: 07 February 2008
• Docket Number: 12.
• Citation: 10 N.Y.3d 1,881 N.E.2d 1187,852 N.Y.S.2d 1
• Parties: Helen ORNSTEIN, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

881 N.E.2d 1187

10 N.Y.3d 1

852 N.Y.S.2d 1

Helen ORNSTEIN, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.

12.

Court of Appeals of New York.

February 7, 2008.

Kramer & Dunleavy, LLP, New York City (Lenore Kramer and Denise M. Dunleavy of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for respondents.

OPINION OF THE COURT

GRAFFEO, J.

While working as a nurse at a hospital, plaintiff was exposed to the human immunodeficiency virus (HIV) when she was stuck by a blood-filled hypodermic needle that had been left in the bed of a patient with acquired immune deficiency syndrome (AIDS). HIV-antibody tests ultimately established that she had not contracted the virus. The primary issue in this case is the extent of damages plaintiff may recover on her negligent infliction of emotional distress claim. Defendants argue that plaintiff was properly restricted to presenting the jury with proof that she experienced mental anguish for a period of six months following the needle-stick incident. We disagree and conclude that, because plaintiff produced prima facie proof that she suffered from post-traumatic stress disorder and other emotional distress for more than six months after exposure, she should have been allowed to seek recovery for those injuries at trial.

The facts surrounding plaintiff Helen Ornstein's exposure to HIV are not in dispute. On September 1, 2000, while working as a nurse on a per diem basis at Bellevue Hospital in Manhattan, plaintiff and a nurse's aide began bathing a critically-ill patient suffering from AIDS. As she was turning the patient, plaintiff was stuck in the thumb by a hypodermic needle that had been left in the patient's bed by an intern. Because the needle contained blood, plaintiff was immediately treated with antiviral medications for potential HIV exposure. She remained on these medications for two months, suffering side effects that continued for several months thereafter including nausea and neuropathy in her hands and feet.

Plaintiff also promptly commenced a regimen of periodic HIV testing, a practice that involves examination of the blood to determine whether HIV antibodies are present. Such antibodies are not evident on the date of exposure but can develop over time. The presence of HIV antibodies signals that a person has contracted the HIV virus, which may lead to the development of AIDS or other HIV-related illness. Plaintiff here was tested every three months for a period of two years following her exposure but consistently tested negative for infection with HIV.

In May 2001, plaintiff commenced this action against the intern and the New York City Health and Hospitals Corporation, as operator of the hospital, alleging negligent infliction of emotional distress. After defendants answered the complaint and the parties conducted discovery, de.; fendants moved to dismiss that part of plaintiffs claim that sought damages for emotional distress plaintiff suffered more than six months after the needle-stick incident. Relying on the Appellate Division decision in Brown v. New York City Health & Hosps. Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880 (2d Dept. 1996), defendants contended that plaintiff could not recover emotional distress damages beyond the six-month mark because a person exposed to HIV who has tested negative at that juncture is unlikely to become infected and it is therefore unreasonable as a matter of law for that person either to continue to fear infection or claim emotional distress due to the exposure incident.

In opposition to defendants' motion, plaintiff submitted evidence that she had continued to experience mental anguish relating to the incident long after the initial six-month period had passed and, in fact, expected to suffer permanently from posttraumatic stress disorder. At her deposition, plaintiff testified that she had not been advised by a physician that her fear of contracting HIV should have been allayed after six months. She stated that her anxiety over whether she had been infected with the virus continued until she tested negative in June 2002, about a year and a half after the incident. Even after her fear about testing positive dissipated plaintiff asserted that she continued to suffer emotional distress in the form of post traumatic stress disorder, a condition that caused her to experience sleep disturbances and "flash backs" relating to the incident. She developed such a significant fear of future needle-stick incidents that she changed the nature of her work from patient care to office work and, later, to teaching, ultimately accepting a position that did not require any patient contact. Plaintiff explained that she had undergone psychiatric therapy and taken antidepressant medications to alleviate her emotional injuries but, despite these efforts, her symptoms persisted. In addition to her deposition testimony, plaintiff provided the report of a psychiatrist who opined that, as a result of the needle-stick incident, plaintiff suffered from chronic post-traumatic stress disorder warranting additional treatment for the foreseeable future.

In reply, defendants did not dispute that plaintiff could produce prima facie evidence of persistent emotional distress beyond six months of her exposure to HIV Rather, they urged that any plaintiff who tested negative for HIV infection six months after exposure should be precluded, as a matter of law, from recovering damages for subsequent emotional distress because, at the conclusion of the six-month "window of anxiety" period, continuing emotional distress becomes unreasonable and, hence, uncompensable.

Supreme Court denied defendants' motion, finding that plaintiff's submissions, which were supported by objective medical evidence, established a bona fide claim of continuing emotional distress sufficient for submission to a jury. On defendants' interlocutory appeal, a three-justice majority of the Appellate Division reversed and granted defendants' motion to restrict damages, while the two dissenters would have affirmed Supreme Court's holding.

The case then proceeded to trial, with plaintiff being foreclosed from presenting evidence that she suffered damages beyond the six-month period immediately following the needle-stick incident. The jury found defendants liable and awarded plaintiff a judgment of $333,000 for past pain and suffering and $15,000 for past lost wages. Plaintiff now appeals to this Court as of right from the judgment of Supreme Court, bringing up for review the prior, nonfinal Appellate Division order restricting damages. Because we agree with plaintiff that damages were improperly limited, we reverse both the judgment and Appellate Division order, and remit this matter to Supreme Court for a new trial on damages.

It is well-settled that a person "to whom a duty of care is owed . . . may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations" (Johnson v. State of New York, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] [citations omitted] ). A breach of the duty of care "resulting directly in emotional harm is compensable even though no physical injury occurred" (Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332 [1983]) when the mental injury is "a direct, rather than a consequential, result of the breach" (id. at 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332) and when the claim possesses "some guarantee of genuineness" (Ferrara v. Galluchio, 5 N.Y.2d 16, 21, 176 N.Y.S.2d 996, 152 N.E.2d 249 [1958] ). Applying these principles to negligent infliction of emotional distress claims arising from exposure to HIV, New York courts have required plaintiffs who have not tested HIV positive to come forward with proof that, due to the negligence of another party, they were exposed to HIV through "a scientifically accepted method of transmission of the virus ... and that the source of the allegedly transmitted blood or fluid was in fact HIV positive" (Bishop v. Mount Sinai Med. Ctr., 247 A.D.2d 329, 331, 669 N.Y.S.2d 530 [1st Dept.1998] [internal quotation marks omitted]; see O'Neill v. O'Neill, 264 A.D2d 766, 694 N.Y.S.2d 772 [2d Dept.1999], lv. dismissed 94 N.Y.2d 858, 704 N.Y.S.2d 533, 725 N.E.2d 1095 [1999]; McLarney v. Community Health Plan, 250 A.D.2d 310, 680 N.Y.S.2d 281 [3d Dept.1998], lv. dismissed 93 N.Y.2d 848, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999] ).¹

There is no question in this case that defendants owed plaintiff a duty of care and that she came forward with proof that fulfilled the "actual exposure" requirement, thereby satisfying the indicia of genuineness requirement. Thus, the parties agree that plaintiff's negligent infliction of emotional distress claim warranted a jury trial. The disagreement centers on the extent of damages that plaintiff was entitled to request at trial.

In concluding that plaintiff's damages should be restricted to those suffered during the six months following the HIV exposure incident, the Appellate Division largely relied on Brown v. New York City Health & Hosps. Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880 (1996). Like this case, the plaintiff in Brown was a nurse who was stuck by a needle used in treating an HIVinfected patient. She then commenced a negligent infliction of emotional distress lawsuit seeking damages for the period from 1990 (when the needle-stick incident occurred) until the year 2005 on the theory that, if she was free of the disease after 15 years, her risk of infection would be extinguished. After an initial HIV test taken on the day of the incident, which would not have shown a positive result even if she had contracted the virus that day, plaintiff refused to take additional tests to definitely establish her HIV status. The Brown defendants moved to compel ...