Millikan v. Holy Spirit Hospital

27 Pa. D. & C.4th 481, 1996 Pa. Dist. & Cnty. Dec. LEXIS 393
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedFebruary 9, 1996
Docketno. 95-3482 Civil
StatusPublished

This text of 27 Pa. D. & C.4th 481 (Millikan v. Holy Spirit Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millikan v. Holy Spirit Hospital, 27 Pa. D. & C.4th 481, 1996 Pa. Dist. & Cnty. Dec. LEXIS 393 (Pa. Super. Ct. 1996).

Opinion

BAYLEY, J,

Plaintiff, Barbara Millikan, filed a complaint against defendant, Holy Spirit Hospital. Plaintiff alleges that her blood was [482]*482drawn in a pre-admission procedure for surgery on her nose. The blood was sent to the Holy Spirit Hospital laboratory. During a post-surgery visit with her physician on July 8,1993, the physician received a telephone call from an employee of the Holy Spirit Hospital laboratory informing him that the laboratory results of plaintiff’s blood “tested positive for antibodies known to react with the human immunodeficiency virus [HIV] type 1 and 2.” The physician informed plaintiff of the report. On the same day, plaintiff was informed of a second test, a Western Blot test, performed by the Holy Spirit laboratory on her blood confirming the presence of antibodies of the AIDS virus. Over the next couple of weeks, plaintiff and her husband and daughter were given a series of blood tests that came back negative for the AIDS virus. The results of the blood test and second confirming test reported to plaintiff from the Holy Spirit laboratory on July 8, 1993, were actually for tests performed on the blood of a person other than plaintiff. Plaintiff avers that Holy Spirit Hospital was negligent in testing the blood of someone else, and then reporting the results of those tests to plaintiff. She seeks damages for “severe, permanent injuries including humiliation, embarrassment, mental anguish and mental distress,” and “loss of life’s pleasures.” Plaintiff also avers that she “was required to undergo additional testing and medical treatment which caused [her] to incur medical bills for which a claim is made.”

Defendant filed a demurrer to plaintiff’s complaint which was briefed and argued on January 31, 1996. A demurrer is to be granted only where, as a matter of law, there can be no recovery on the facts alleged. Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. [483]*483629, 584 A.2d 403 (1990). In Lubowitz v. Albert Einstein Medical Center, 424 Pa. Super. 468, 623 A.2d 3 (1993), the facts were:

“In August 1985, appellants participated in the hospital’s in vitro fertilization program. An egg was removed from Robyn Lubowitz and was placed with a sample of her husband’s sperm into a placental serum provided by an anonymous donor. The embryo was then implanted, and Robyn Lubowitz became pregnant, she later suffered a miscarriage which is unrelated to this action.
“On or about November 18, 1985, Dr. Freedman informed the appellants that the hospital had performed an enzyme linked immunosorbent assay (ELISA) test of the donated placental blood which had been used in their in vitro fertilization procedure. The blood had tested positive for the acquired immune deficiency syndrome (‘AIDS’) antibody, HTLV-III. After receiving this information, appellant Robyn Lubowitz allegedly experienced mental distress and various physical ailments, including recurrent nausea, vomiting and diarrhea.
“The hospital then conducted additional blood tests on the placental donor and appellant. An ELISA test of appellant’s blood was returned negative for the AIDS antibody on November 23,1985. The hospital also sent blood samples from appellant and the placental donor to Washington, D.C., so that another AIDS test, the Western Blot analysis, could be performed. On January 29, 1986, the placental donor’s blood tested negative for the AIDS antibody, and on February 7, 1986, appellant’s blood also tested negative.” Id. at 469, 623 A.2d at 4. (footnote omitted)

The trial court granted the medical center’s motion for summary judgment on plaintiff’s causes of action [484]*484alleging negligent infliction of emotional distress and negligent performance of an undertaking to render services. The Superior Court of Pennsylvania affirmed, concluding:

“It is undisputed that appellants have never tested positive for the AIDS antibody. Moreover, although Robyn Lubowitz alleges that she suffered physical manifestations of emotional distress, the actual injury at issue is the ‘fear of AIDS. ’ Whether such fear is a compensable injury is an issue of first impression in this Commonwealth. However, we are guided by decisions which involve similar ‘risk of contracting disease’ claims. See e.g., Ottavio v. Fibreboard Corp., 421 Pa. Super. 284, 617 A.2d 1296 (1992); Altiere v. Fibreboard Corp., 421 Pa. Super. 297, 617 A.2d 1302 (1992); Marinari v. Asbestos Corp., 417 Pa. Super. 440, 612 A.2d 1021 (1992).
“In Ottavio, the plaintiff filed an action against numerous manufacturers of asbestos products to recover for injuries allegedly sustained as a result of workplace exposure to asbestos. Id. at 286, 617 A.2d at 1297. Ottavio sought damages for pleural thickening and a fear of developing future diseases, including cancer, allegedly caused by exposure to asbestos. Id. An en banc panel of this court held that ‘Ottavio was entitled to recover compensation only for that disease, if any, which existed at the time of trial. He could not recover in an action for asymptomatic pleural thickening monetary damages for the risk of a future disease such as cancer.’ Id. at 296, 617 A.2d at 1302.
“Likewise, the most that Robyn Lubowitz could aver in this case was that she ‘has a rational basis to believe she was exposed to the AIDS virus’ because of the [485]*485positive results of the initial test performed on the placental donor’s blood. Appellants’brief at 14. This simply is not enough. As in Ottavio, Robyn Lubowitz cannot recover, in her asymptomatic state, monetary damages for a risk or fear of developing AIDS in the future.
“We realize that there are factual questions with respect to the appellees’ negligence and Robyn Lubowitz’ actual physical harm. Nonetheless, these factual issues are irrelevant under the circumstances of this case, where appellant’s symptoms were not caused by the AIDS virus itself. Because there is no legally cognizable injury, there can be no recovery for the alleged negligence.” Lubowitz, supra at 471-72, 623 A.2d at 5. (footnotes omitted)

In Griffin v. American Red Cross, 1994 U.S. Dist. LEXIS 16838 (E.D. Pa. November 24, 1994), plaintiff donated blood at the American Red Cross in anticipation of her upcoming hysterectomy. A representative of the Red Cross contacted plaintiff’s surgeon a few weeks later and stated that plaintiff’s blood had tested positive for HIV. The surgeon informed plaintiff of the test, but took another blood sample which, within 24 hours, tested HIV-negative. Plaintiff instituted suit against the Red Cross for negligent infliction of emotional distress. Citing Lubowitz v. Albert Einstein Medical Center, supra,

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27 Pa. D. & C.4th 481, 1996 Pa. Dist. & Cnty. Dec. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millikan-v-holy-spirit-hospital-pactcomplcumber-1996.