Pettigrew v. Putterman

• Decision Date: 28 May 2002
• Docket Number: No. 1-01-0610.,1-01-0610.
• Parties: Alicia PETTIGREW, Plaintiff-Appellant, v. Allen PUTTERMAN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

771 N.E.2d 1008

331 Ill. App.3d 633

265 Ill.Dec. 49

Alicia PETTIGREW, Plaintiff-Appellant, v. Allen PUTTERMAN, Defendant-Appellee.

No. 1-01-0610.

Appellate Court of Illinois, First District, First Division.

May 28, 2002.

Scott L. Anderson, Lane & Lane, Chicago, for Appellant.

Mark C. Fedota, Fedota, Childers & May, P.C., Chicago, for Appellee. Presiding Justice COHEN delivered the opinion of the court:

Plaintiff Alicia Pettigrew, a nurse at Michael Reese Hospital, filed a two count complaint against defendant Dr. Allen Putterman. In the first count, plaintiff alleged that she suffered a laceration to her hand when defendant handed her a used surgical scissors in a negligent manner during a surgical procedure. In the second count, plaintiff additionally alleged that she had suffered emotional distress arising from fear of contracting acquired immune deficiency syndrome (AIDS) as a result of defendant's negligence. Defendant, seeking summary judgment, argued that the "actual exposure" rule announced in Majca v. Beekil, 183 Ill.2d 407, 233 Ill.Dec. 810, 701 N.E.2d 1084 (1998), bars recovery because plaintiff could not prove actual exposure to the human immunodeficiency virus (HIV), the virus which causes AIDS. The trial court granted summary judgment. Plaintiff appealed. For the following reasons, we reverse and remand.

FACTS

Defendant, an ophthalmic plastic surgeon, performed surgery on the eyelid of an unidentified¹ patient on November 1, 1994. Plaintiff assisted in that surgery as a scrub nurse. According to plaintiff's first amended complaint, the surgical patient was "suffering from the AIDS infection" at the time of the surgery. After using a surgical scissors to cut the patient's eyelid, defendant allegedly dropped the scissors onto plaintiff's hand while attempting to hand them to her. The scissors punctured plaintiff's glove and the skin of her hand. In both counts of her complaint, plaintiff alleged that defendant was negligent in that he:

"(a) Failed to observe the field or area where the scissors were being placed before releasing said instrument;

(b) Failed to place the scissors into the plaintiff's hand before releasing said instrument; and/or

(c) Failed to wait for the plaintiff to grip the scissors before releasing said instrument."

In count I of her complaint, plaintiff alleged that, as a result of defendant's negligence, plaintiff suffered "injuries including but not limited to the laceration to her hand, lost wages, medical expenses, pain and suffering, [and] physical and emotional trauma." In count II of her complaint, plaintiff additionally alleged that, as a result of defendant's negligence, plaintiff "suffered emotional distress from having been exposed to the AIDS virus."

In his original answer to plaintiff's first amended complaint defendant admitted that "he performed a surgical procedure with the assistance of the plaintiff * * * on a patient who subsequently was determined to be HIV positive." Defendant later moved for leave to amend his answer, alleging that through discovery he had learned both that "the surgical patient was never diagnosed as being HIV positive at the time of the occurrence" and further that there was no evidence of HIV positive test results sufficient to establish a diagnosis of HIV infection as defined by section 697.100 of the Illinois Administrative Code (77 Ill. Adm.Code § 697.100 (2001)). After the trial court granted defendant's motion, defendant filed an amended answer denying that the surgical patient was either suffering from the AIDS infection or HIV positive. Defendant then moved for summary judgment, arguing that the Illinois Supreme Court has held that a plaintiff must provide proof of actual exposure to HIV in order to maintain a cause of action for fear of AIDS (Majca v. Beekil, 183 Ill.2d 407, 420-21, 233 Ill.Dec. 810, 701 N.E.2d 1084 (1998)). Defendant further noted that section 697.100 of the Illinois Administrative Code requires two positive screening test² results followed by one positive confirmatory test³ result before a tested sample shall be considered to be HIV positive (77 Ill. Adm.Code §§ 697.100(b)(2), (b)(3) (2001)). Defendant argued that without evidence of a positive confirmatory test result, plaintiff could not prove actual exposure to HIV and therefore could not maintain a cause of action for fear of AIDS.

In response, plaintiff submitted a redacted perioperative nursing record indicating that the surgical patient had a history of intravenous drug abuse. In her deposition, plaintiff testified that, following the accident, she went to the Employee Health Service at Michael Reese Hospital, where her blood was drawn for HIV testing pursuant to hospital policy. Plaintiff underwent three further HIV tests at six weeks, six months, and one year after the accident. Each test was negative for HIV. Pursuant to hospital policy, the surgical patient's blood was also drawn and tested immediately following the accident. Plaintiff testified that Nurse Paulette Abadiano of the Employee Health, Service informed plaintiff two days later that the surgical patient had tested positive for HIV. Plaintiff consulted with her primary care physician, who recommended that plaintiff take AZT, a drug commonly prescribed for treatment of HIV infection. Dr. Scott McCallister, an infectious disease specialist who consulted with plaintiff through the Employee Health Service, prescribed AZT to plaintiff.

Plaintiff also submitted the deposition testimony of both defendant and Dr. Fred Bodker, a surgical fellow who assisted at the surgery in question. During his deposition, defendant testified that he had told his wife that an accident had occurred involving plaintiff and that the surgical patient "turned out to be HIV positive." Defendant later testified that both Nurse Abadiano and Dr. Bodker had informed him that the surgical patient was HIV positive. Dr. Bodker was asked at his deposition, "Did any of you know at the time of the actual operation the HIV status of this patient?" Dr. Bodker responded, "It seems to me we knew he was positive."

Finally, plaintiff submitted the deposition testimony of Nurse Abadiano confirming that Dr. McAllister prescribed AZT for plaintiff Nurse Abadiano testified that she did not inform plaintiff that the surgical patient was HIV positive but rather that the ELISA results for the surgical patient were positive for HIV. Nurse Abadiano could not remember whether she told plaintiff that the surgical patient's blood sample had been sent for confirmatory Western Blot testing. Nurse Abadiano thought she had told plaintiff that Western Blot results were still pending. Defense counsel introduced a packet of documents identified as Exhibit 1. Nurse Abadiano identified a document included in the packet as a form regularly used in the Employee Health Department at Michael Reese Hospital. A portion of the form, which Nurse Abadiano read into the record, indicated that the surgical patient has tested "positive times 2 by ELISA" Nurse Abadiano identified a second document titled "HIV Antibody Final Results" as a report included in plaintiff's employee health record. This document indicates that testing of the surgical patient's blood sample was "positive by ELISA"; however, the quantity of the sample was insufficient to confirm that result by Western Blot. Nurse Abadiano testified that she never saw any confirmatory Western Blot result for the surgical patient. (Although neither of the above-mentioned documents is appended to Nurse Abadiano's deposition, both are included in the record as exhibits to the deposition of Dr. McCallister, which was also submitted in response to the motion for summary judgment.)

At his deposition, Dr. McAllister explained that testing for HIV infection involves three components. First, a sample is subjected to a screening test such as the ELISA test for HIV. If the ELISA test returns a positive result, a second ELISA test is run to ensure that the first result was accurate. After two positive ELISA results, a confirmatory test such as the Western Blot is run to confirm a diagnosis of HIV infection. Dr. McAllister testified that without a positive confirmatory test result, no diagnosis of HIV infection would be made. A report of the surgical patient's test results is included as an exhibit to Dr. McCallister's deposition. The report indicates two positive ELISA results but that the sample submitted for Western Blot testing was insufficient and therefore that test was inconclusive.

Prior to ruling on defendant's motion for summary judgment, the trial judge entered an order granting plaintiff leave to file a motion to compel the surgical patient to present his medical records for in camera inspection. Plaintiff filed such a motion; however, defendant objected noting that the surgical patient was not a party to the lawsuit and the trial court was without authority to compel the patient to disclose his medical records. The trial court denied the motion to compel.

In ruling on defendant's motion for summary judgment, the trial judge noted:

"This Court finds that the above claims [for fear of contracting AIDS] are based on hearsay statements made by nurses and physicians. There is no foundation in fact before this Court which supports Plaintiff's belief and there is no evidence to confirm that the patient is HIV positive. While the Court is sympathetic to Plaintiff's situation, the law is clear that the Court cannot force the patient to divulge his medical status. Hence, as stated in both Majca and Natale v. Gottlieb Memorial Hospital, 314 Ill.App.3d 885, 888, 247 Ill.Dec. 916, 733 N.E.2d 380] (2000)], `without proof of actual exposure to HIV, a claim for fear of contracting AIDS is too speculative to be legally cognizable.' Majca, [183 Ill.2d] at 420, 233 Ill.Dec. 810, 701 N.E.2d 1084]. Accordingly, Plaintiff has not provided this Court with any evidence that she was actually exposed to HIV. Plaintiff

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