Pendergist v. Pendergrass

• Decision Date: 10 February 1998
• Docket Number: No. WD,WD
• Citation: 961 S.W.2d 919
• Parties: Patrick PENDERGIST, Appellant, v. Kelly B. PENDERGRASS, M.D., et al., Health Midwest, Prime Health, KC, Inc., Solomon Lewitton, M.D., Respondents. 54315.
• Court: Missouri Court of Appeals

Page 919

961 S.W.2d 919

Patrick PENDERGIST, Appellant, v. Kelly B. PENDERGRASS, M.D., et al., Health Midwest, Prime Health, KC, Inc., Solomon Lewitton, M.D., Respondents.

No. WD 54315.

Missouri Court of Appeals Western District.

Feb. 10, 1998.

H. Kent Desselle, Independence, for appellant.

Timothy M. Aylward, Blackwell, Sanders, Matheny, Weary & Lombardi, LLP, Kansas City, for Respondent Pendergrass.

Roger Paul Wright, Theodore M. Green, Shughart, Thomson & Kilroy, P.C., Kansas City, for Respondent Health Midwest, Inc.

Kenneth J. Reilly, Kelley D. Sears, Shook, Hardy & Bacon, L.L.P., Kansas City, for Respondent Prime Health.

Michael P. Oliver, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Kansas City, for Respondent Lewitton.

Before ULRICH, C.J., P.J., and ELLIS and HOWARD, JJ.,

ULRICH, Chief Judge, Presiding Judge.

Patrick Pendergist appeals the trial court's order granting the motions for summary judgment filed by the defendants, Kelly B. Pendergrass, M.D., Prime Health, Kansas City, Inc., Health Midwest, Inc. d/b/a Research Medical Center, Humana, Inc. d/b/a Humana Health Care Plans, and Soloman Lewitton, M.D. (collectively "Defendants"). Despite having tested negative for the Human Immunodeficiency Virus (HIV) four times in four years, Mr. Pendergist sued Defendants for negligent infliction of emotional distress and fraudulent misrepresentation premised upon his fear of contracting Acquired Immunodeficiency Syndrome (AIDS) or hepatitis B, another communicable blood disease, as a result of receiving human whole blood Factor VIII rather than Recombinant Factor VIII, which he claimed to have requested, during his hernia surgery in 1993. The question presented is whether a plaintiff may recover damages for emotional distress based on a fear of contracting AIDS or hepatitis B absent proof of actual exposure to HIV. The judgment of the trial court is affirmed.

FACTS

Patrick Pendergist is 48 years old. At the age of seven, he was diagnosed with hemophilia, a condition of the circulatory system characterized by delayed clotting of the blood and difficulty in controlling hemorrhage. Mr. Pendergist saw his physician on June 9, 1993, and complained of a lump in the right groin region. Mr. Pendergist's physician diagnosed the injury, the apparent result of an automobile accident, as a hernia, and Mr. Pendergist elected to have the hernia surgically repaired.

Mr. Pendergist had previously undergone bone spur and ganglion surgery. On both occasions, he received human whole blood Factor VIII. Factor VIII is a clotting agent that prevents excessive bleeding. Despite having received human whole blood Factor VIII during two prior surgeries, Mr. Pendergist claimed that before his hernia surgery in 1993, he specifically told all of the treating medical professionals that he wanted "synthetic" Factor VIII, i.e., Recombinant Factor VIII, rather than human whole blood Factor VIII. He requested Recombinant Factor VIII because he believed that it was (1) safer than human whole blood Factor VIII and (2) incapable of transmitting life-threatening diseases. Mr. Pendergist conceded, however, that none of the health care providers told him he would receive Recombinant Factor VIII.

Human whole blood Factor VIII is generally prepared from large plasma pools obtained from thousands of donors, and without adequate inactivation of viruses, it can transmit HIV and hepatitis B. Consequently, human whole blood Factor VIII is treated with a solvent and a detergent to eliminate the HIV and hepatitis B viruses. Since the virus-sterilization process was introduced in 1985, many thousands of patients have received more than seven million doses of blood products, including human whole blood Factor VIII, without transmission of HIV or hepatitis B infections. Recombinant Factor VIII, however, is derived from introduction of Factor VIII genes into Chinese hamster cells. Because human albumin, a protein, is added as a stabilizer, a purification process utilizing affinity and ion exchange chromatography is necessary.

Mr. Pendergist experienced successful hernia surgery at Research Medical Center in Kansas City on July 2, 1993. Human whole blood Factor VIII was administered to Mr. Pendergist during the surgery. Upon learning after the surgery that he received human whole blood Factor VIII, Mr. Pendergist claims that he began to feel angry, frustrated, and helpless. He claims that he became distrustful and paranoid, experienced bizarre dreams, and grew concerned about contracting AIDS or hepatitis B.

AIDS is the most severe manifestation of infection with Human Immunodeficiency Virus (HIV). Centers for Disease Control and Prevention (CDC) National AIDS Clearinghouse: Information on HIV/AIDS (last modified March 1997) . The CDC lists numerous opportunistic infections and cancers that, in the presence of HIV infection, constitute AIDS diagnosis. Id. Persons infected with "full-blown AIDS" frequently suffer from infections of the lungs, brain, eyes, and other organs and from debilitating weight loss, diarrhea, and a type of cancer called Kaposi's Sarcoma. Id.

HIV is a retrovirus that attacks the human immune system. Faya v. Almaraz, 329 Md. 435, 620 A.2d 327, 329 (Md.1993). The virus invades host cells, notably certain lymphocytes, replicates itself, weakens the immune system, and ultimately destroys the body's capacity to ward off disease. Id. The HIV virus is not spread casually. The fluids that can transmit the virus are blood, semen, vaginal fluids, and breast milk, and the virus is only transmitted if fluid from the carrier is introduced into the bloodstream of another individual. Id. (citing U.S. Dept. of Health and Human Servs., Surgeon General's Report on Acquired Immune Deficiency Syndrome 16 (1987)). Thus, the typical modes of transmission of HIV include sexual contact, exposure to infected blood or blood components, and perinatally from mother to infant. DeMilio v. Schrager, 285 N.J.Super. 183, 666 A.2d 627, 630 n. 2 (N.J.Super.Ct. Law Div.1995). The presence of HIV is detected by a laboratory blood test for antibodies to the virus. Although there is often a long latency period between infection with HIV and the onset of AIDS, enzyme immunoassay tests are considered to be 99% accurate three months after exposure. Brown v. New York City Health and Hosp. Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880, 885 (N.Y.App.Div.1996). Ninety-five percent of HIV-infected individuals test positive for the virus within six months of exposure. Id. An individual who tests negative for HIV antibodies more than six months after a potential exposure is, therefore, unlikely to become infected with the virus as a result of that exposure. Id.

In November 1993, Mr. Pendergist underwent an enzyme immunoassay test to determine whether he had been exposed to the HIV virus, and the test was negative. He was tested again for HIV and hepatitis in the summers of 1994, 1995, and 1996 with negative results.

Mr. Pendergist filed his petition for damages against Defendants on June 27, 1995. He sought over $5.2 million in damages for his claimed emotional injuries under two theories: negligent infliction of emotional distress and fraudulent misrepresentation. Defendants filed separate motions for summary judgment arguing that without evidence of actual exposure to the HIV or hepatitis virus as a result of his having received human whole blood Factor VIII during hernia surgery in 1993, Mr. Pendergist's claim for emotional distress damages based on a fear of contracting AIDS failed as a matter of law. The trial court found that absent actual exposure to the HIV or hepatitis virus, Mr. Pendergist's claimed emotional distress based on the fear of contracting AIDS or hepatitis was unreasonable and granted Defendant's motions. This appeal followed.

RECOVERY FOR EMOTIONAL DISTRESS FOR FEAR OF CONTRACTING AIDS

In his sole point on appeal, Mr. Pendergist claims that the trial court erred in granting Defendants' motions for summary judgment. He contends that proof of actual exposure to the HIV or hepatitis B virus is not necessary as a matter of law for recovery of emotional distress damages.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.; Reeves v. Keesler, 921 S.W.2d 16, 19 (Mo.App.1996).

The general elements of a negligence...