Ornstein v. New York City Health & Hospitals Corp.

27 A.D.3d 180, 806 N.Y.S.2d 566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2006
• Status: Published

Opinions

OPINION OF THE COURT

Marlow, J.

The central question raised on this appeal is whether plaintiff has a viable claim for an award of damages solely for emotional and psychological injury as the result of exposure to the virus which causes acquired immune deficiency syndrome (AIDS) subsequent to the time at which unchallenged scientific and statistical evidence shows the underlying fear of infection unreasonable.

On September 1, 2000, plaintiff, a part-time nurse in the emergency ward of Bellevue Hospital, was assigned to care for a critically ill patient diagnosed with AIDS. While rolling the patient over with the help of an aide in order to clean him, plaintiff discovered a needle stuck in the mattress. After disposing of the needle, plaintiff and the aide continued cleaning the patient. As they rolled the patient over to the other side, another needle punctured plaintiffs double layer of gloves and her thumb.

Plaintiff was treated immediately with antiviral medication for exposure to the human immunodeficiency virus (HIV), the agent that causes AIDS. The dosage was increased after plaintiffs doctors received a report on the severity of the patient’s condition. Plaintiff remained on medication for a “couple of months,” with side effects continuing for about two months thereafter.

Plaintiff underwent tests to detect the presence of HIV antibodies every three months for a year, testing negative each time. Her treating physician told her that the likelihood of contracting the AIDS virus was highest between the third and sixth month after exposure. Plaintiff claimed she was not aware that the odds of contracting the virus decreased after six months, and, in any event, regardless of the medical view that it was unlikely she would contract AIDS after six months of negative testing, she intended to be tested for a year. Although plaintiff tested negative in September 2001, one year after the incident, it was not until June 2002 that she no longer feared contracting the disease.

Soon after the incident, plaintiff alleged that she began having panic attacks. She began weekly therapy and saw a psychiatrist who prescribed drugs, including Valium and Prozac. Plaintiff was diagnosed by a workers’ compensation psychiatrist as suffering from post-traumatic stress disorder and a sleep disorder as a result of the incident. Plaintiff claimed she has not been able to work in an emergency or operating room since the incident because of her stress disorder.

Plaintiff commenced this action in May 2001 against the Health and Hospitals Corporation and the doctor she claimed left the needles in the bed. Plaintiff sought damages for emotional injuries, including the fear of contracting AIDS (commonly referred to as AIDS phobia), post-traumatic stress disorder, and recurrent major depressive disorder.

Citing prevailing legal authority which is based on the medical consensus that it is highly unlikely that a person who tests HIV negative more than six months after a potential exposure will become infected, defendants moved, pursuant to CPLR 3211 (a) (7), to dismiss any claim for emotional damages sustained more than six months after plaintiffs thumb was pierced with the needle. Plaintiff argued that her claims for post-traumatic stress disorder and depressive disorder were permanent and separate and apart from any AIDS phobia claim, and, therefore, compensable beyond six months.

Agreeing with plaintiff that she was not seeking continued damages for her AIDS phobia claim, but, rather, was seeking damages for her separate claim for continued emotional and psychological injuries beyond six months, the Supreme Court found the prevailing authority relating to the six-month recovery bar in AIDS phobia cases inapplicable. Instead, the court relied on Fosby v Albany Mem. Hosp. (252 AD2d 606 [1998]), in which the Third Department allowed a plaintiff to pursue a claim for negligent infliction of emotional distress, despite no actual proof of exposure to HIV¡ where there were special circumstances which demonstrated that the claim was not spurious.

It is beyond cavil that a cause of action for negligent infliction of emotional distress does not always require a physical injury as a necessary element (see e.g. Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987]; Sheila C. v Povich, 11 AD3d 120 [2004]). However, recovery for purely emotional damages is extremely limited (see Kennedy v McKesson Co., 58 NY2d 500 [1983]; Creed v United Hosp., 190 AD2d 489, 491 [1993]). Therefore, such a claim “generally must be premised upon the breach of a duty owed to plaintiff which either unreasonably endangers the plaintiffs physical safety, or causes the plaintiff to fear for his or her own safety” (Sheila C., supra, 11 AD3d at 130; see also Bovsun v Sanperi, 61 NY2d 219 [1984]).

The relatively new theory of tort liability for negligent infliction of emotional distress based on a plaintiffs exposure to HIV and concomitant fear of contracting AIDS presents a unique problem given the initial and continuing public misconceptions about AIDS and how it is transmitted; the lack of an accompanying physical injury; the genuine concern that these claims could be feigned easily; and the general limitation of recovery for strictly emotional damages. New York, to date, has recognized a claim for emotional distress based on AIDS phobia subject to certain limitations. Notably, plaintiff does not challenge the existing law in New York limiting recovery for AIDS phobia claims to six months. The question we decide today is whether the unchallenged six-month limitation on recovery based on an AIDS phobia claim equally applies to plaintiffs alleged separate and distinct claim for post-traumatic stress disorder and emotional damages, which she asserts are unrelated to any phobia claim, or, whether, as our dissenting colleague contends, such a limitation employs a legal standard not supported by either statute or common law. We find that the limitation applies to plaintiffs claim, and, therefore, reverse the order of the Supreme Court.

New York has adopted the widely accepted objective standard for determining whether a plaintiff, who has not tested HIV positive, has in fact actually been exposed to HIV (see Brown v New York City Health & Hosps. Corp., 225 AD2d 36, 46 [1996] [and cases cited therein]). Thus, in order to advance a claim for the negligent infliction of emotional distress caused by AIDS phobia, a plaintiff must present, as a threshold requirement, proof of “actual[ ] expos[ure]” (see Kelly v Our Lady of Mercy Med. Ctr., 279 AD2d 290, 290 [2001], lv denied 96 NY2d 719 [2001]; Bishop v Mount Sinai Med. Ctr., 247 AD2d 329, 331 [1998]; Brown, 225 AD2d at 45). Actual exposure requires proof of a scientifically accepted channel of transmission and the presence of HIV during transmission (see Bishop, supra; Brown, supra). Defendants agree plaintiff has satisfied this threshold requirement. However, they maintain plaintiff cannot recover any claim for damages, including those that are not phobia related, for any period beyond six months from the date of the incident. Defendants argue that plaintiffs claimed injuries all stem from her initial fear of becoming infected, and, therefore, any claim for damages beyond six months is unreasonable. On the other hand, plaintiff contends that any recovery for her claimed emotional and psychological injury in the form of post-traumatic stress disorder—which she characterizes as a traditional negligent infliction of emotional distress claim—is not subject to a reasonableness standard.

In Brown, Justice O’Brien, in a thorough and well-reasoned opinion, considered the widespread public misconceptions surrounding AIDS despite the weight of the medical authority which suggested that an individual exposed to the AIDS virus can be reasonably assured that he or she is free of infection if tests conducted for six months after exposure are negative (225 AD2d at 42-44). The rationale for imposing a corresponding limitation on AIDS phobia claims is the medical consensus that 95% of HIV carriers will test positive for the virus within six months of acquiring it (see Brown, 225 AD2d at 43; Faya v Almaraz, 329 Md 435, 446, 620 A2d 327, 332 [1993] [relying on Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. S-7, and C. Robert Horsburgh et al., Duration of Human Immunodeficiency Virus Infection before Detection of Antibody, The Lancet, Sept. 16, 1989, at 637-640]).

Justice O’Brien further aptly observed:

“Because an ‘AIDS phobia’ cause of action is based on a potential future injury, the requirement of proof of actual exposure is necessary in order to insure that such a cause of action remains within the bounds of what is considered reasonably possible. The fear of contracting AIDS depends not only upon the likelihood that the virus was transmitted during a specific incident but also upon the likelihood that infection will develop. As one court noted, the statistical probability of contracting HIV from a single needle stick, assuming the needle was contaminated, is approximately 0.3 to 0.5% . . .” (225 AD2d at 47).

Thus, the Brown court held that “[a] plaintiffs initial, reasonable fear of contracting AIDS . . . becomes unreasonable if more than six months have passed since exposure, and the plaintiff continues to test negative for HIV antibodies” (id.).

Following Brown, the Second Department has consistently dismissed all emotional distress claims beyond six months of the date of the alleged exposure where the plaintiff has tested negative for the HFV virus (see Taormino v State of New York, 286 AD2d 490 [2001]; Lombardo v New York Univ. Med. Ctr., 232 AD2d 459 [1996]; cf. Damanti v Jamaica Community Adolescent Program, 12 AD3d 341, 342 [2004] [claim beyond six months not dismissed where testing showed a “false” positive]).

This Court has not decided whether any claim for emotional distress beyond the initial six months immediately following exposure is unreasonable as a matter of law where the plaintiff has tested negative for the HIV virus throughout that six-month period. Defendants’ position that plaintiff’s recovery for emotional damages beyond any AIDS phobia claim should be similarly limited to six months finds support in existing case law (see Brown, supra [Second Department implicitly rejected plaintiffs contention that she was entitled to future damages for post-traumatic stress disorder]; see also Williamson v Waldman, 150 NJ 232, 250, 696 A2d 14, 23 [1997] [emotional distress damages must be based on fears experienced by a reasonable and well-informed person, thus, emotional distress should be limited to the “window of anxiety” or that period after which such reasonable and well-informed person no longer would experience continuing emotional distress]; Faya v Almaraz, 329 Md at 446, 455, 456, 620 A2d at 332, 337 [damages recoverable for fear and its “physical manifestations” (which are objectively measurable) suffered during “window of anxiety” and any lingering injuries would no longer be related to a reasonable fear]; Carroll v Sisters of St. Francis Health Servs., Inc., 868 SW2d 585 [Tenn 1993] [liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances]).

These cases are sufficiently analogous to support the conclusion reached in Brown and the one we reach today. Accepting the allegations set forth in the complaint as true, we find that plaintiff has not set forth a legally cognizable claim for emotional distress, including post-traumatic stress disorder, allegedly sustained beyond six months from the date of initial exposure to the AIDS virus. Indeed, plaintiffs claim for post-traumatic stress disorder is simply an end run around the six-month AIDS phobia restriction on emotional damages, which she does not challenge. Both claims for damages stem directly from the same single needle-stick injury; and, as defendants contend, the fear of AIDS and post-traumatic stress disorder are so intertwined that the two emotional damage claims cannot be distinguished. Accordingly, if it is reasonable to limit damages for an AIDS phobia claim to six months, a limitation which plaintiff does not challenge, a fortiori, it is reasonable to similarly restrict emotional damages stemming from the same initial incident. Moreover, this rationale is supported by medical statistics. The statistical probability that plaintiff would contract AIDS from a single needle stick, assuming the needle was contaminated, is approximately between .3% to .5% in other words, between 3 and 5 in 1,000 (Comment, AfrAIDS: Fear of AIDS as a Cause of Action, 67 Temp L Rev 769, 799 [1994]), and 95% of those HIV carriers will test positive within the first six months of having been infected. Thus, not only is the known initial risk minute, but it is highly unlikely after six months of negative testing that plaintiff had ever become infected with the AIDS virus (see Brown, 225 AD2d at 43-44 [and authority relied on therein]).

Plaintiffs reliance on Fosby v Albany Mem. Hosp. (252 AD2d 606 [1998]) is entirely misplaced. In Fosby, the Court allowed the plaintiff, despite the fact that she could not establish actual exposure, to pursue her AIDS phobia claim nevertheless. The special circumstances cited by the Fosby court relate to the defendant hospital’s refusal, for no apparent reason, to test the needle for 18 months, and that therefore the plaintiff, through no fault of her own, could not demonstrate actual exposure. The motion court here also relied on Fosby for its erroneous conclusion that this plaintiff had demonstrated special circumstances allowing recovery beyond the six-month period. However, special circumstances, as the Fosby court defined them, do not provide an avenue for a plaintiff to pursue additional damages beyond the six-month limit. Rather, it is a mechanism by which a plaintiff, with an apparently genuine claim, can pursue it where special circumstances prevent him or her from demonstrating actual exposure.

The rationale in Fosby has no application here. Indeed, Fosby did not even address the specific issue in this case, i.e„, whether an emotional damage claim may be permitted beyond six months from actual exposure.

Plaintiffs reliance on Marchica v Long Is. R.R. Co. (31 F3d 1197 [1994], cert denied 513 US 1079 [1995]) is also misplaced. In Marchica, the plaintiff brought a claim for AIDS phobia under the Federal Employers’ Liability Act (45 USC §§ 51-60 [FELA]). Noting that it was not bound by the common law, the Second Circuit adopted a more flexible view, consistent with FELA’s remedial purpose and, accordingly, held that the plaintiff was not required to prove actual exposure in order to state a viable cause of action. Rather, it was sufficient if the plaintiff demonstrated a possible channel of transmission. The federal court also held that the plaintiff could recover for all past and future emotional injuries, including post-traumatic stress disorder. Marchica is inapplicable for several reasons. First, it involves a federal statute which evinces a legislative intent to provide a broader remedy than that available at common law. Next, Marchica predates Brown. Finally, this Court has specifically rejected the lesser standard set forth in Marchica (see Bishop, 247 AD2d at 332).

While we can be sympathetic to a person in plaintiffs position, we believe it appropriate to accept the prevailing legal view that compensation for emotional distress based on negligent and actual exposure to the AIDS virus must be based on a reasonable or normal response. In our view, “normal” or “reasonable” can only be measured against the actual medically demonstrated risk of contracting the disease. Given that the initial probability that plaintiff would contract AIDS was only between 3 and 5 in 1,000, and that, if in fact she were infected with HIV there was a 95% chance she would have tested positive within six months of exposure, we find that any emotional distress beyond six months is, as a matter of law, unreasonable.

To depart from this reasonable and objective standard, which insures fairness and consistency in a process intended to compensate plaintiffs for emotional distress, and to employ instead a vague and subjective one for those who claim their emotional state does not correspond to scientifically proven realities, sanctions a right of action highly vulnerable to abuse. Furthermore, it undermines the legal system’s legitimate goal in addressing this sui generis issue since litigation in the area first began, namely, to present a realistic, medically sensitive and sound, temperate response to an actual—as opposed to an uninformed perceived—threat. In light of the widespread, medically unfounded, and occasionally hysterical public misconceptions surrounding this disease and how it is transmitted, the subjective standard, urged by plaintiff, should be rejected.

Accordingly, the order of the Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered January 9, 2004, which denied defendants’ motion to dismiss any claim for damages allegedly sustained by plaintiff more than six months after the incident sued upon, should be reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.