THOMAS C. DUFRECHE * NO. 2020-CA-0030
VERSUS * COURT OF APPEAL JEFFREY WAYNE COCO, MD * AND INTERNAL MEDICINE FOURTH CIRCUIT SPECIALISTS, INC. * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-03960, DIVISION “L” Honorable Kern A. Reese, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Dale N. Atkins)
T. Carey Wicker, III James Alexander Watkins Vincent E. Odom CAPETELLI & WICKER 1100 Poydras Street, Suite 2950 New Orleans, LA 70163-2950
COUNSEL FOR PLAINTIFF/APPELLEE
Kathryn M. Caraway Ann Marie LeBlanc Erica L. Andrews CARAWAY LEBLANC, L.L.C. 3936 Bienville Street New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED APRIL 15, 2020 DNA JFM TFL This is a medical malpractice case. Appellants, Dr. Jeffrey Wayne Coco and
Internal Medicine Specialists, Inc. (“IMS”), appeal the trial court’s judgment
finding that they breached the applicable standard of care in their treatment of
Appellee, Thomas C. Dufreche, and awarding Mr. Dufreche $45,000 in damages
for negligent infliction of emotional distress. For the reasons that follow, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to 2012, Mr. Dufreche underwent periodic testing for human
immunodeficiency virus (“HIV”). In June 2012, Mr. Dufreche sought HIV testing
from Dr. Coco, a physician in New Orleans who specializes in infectious diseases.
At the time when Dr. Coco treated Mr. Dufreche, Dr. Coco was practicing in the
area of infectious diseases at IMS in New Orleans.
In May 2012, prior to Mr. Dufreche seeing Dr. Coco, Mr. Dufreche sought
treatment from his primary care physician, Dr. Alan Bowers. Dr. Bowers
administered a rapid HIV anti-body blood test1 for Mr. Dufreche. The test was
negative. A few weeks later, on June 9, 2012, Mr. Dufreche went to the emergency
1 This test picks up the anti-bodies that a patient develops in response to the antigens that are on the cell wall of the HIV virus. Usually, results are reported in less than an hour.
1 room at Touro Infirmary Hospital (“Touro”) in New Orleans for general malaise,
and another rapid HIV anti-body blood test was performed, which was also
negative. The medical providers at Touro performed several other diagnostic tests,
yet were unable to diagnose the cause of Mr. Dufreche’s symptoms.
After his symptoms persisted, Mr. Dufreche’s friend and neighbor Kevin
Adams, who was a nurse at Touro, suggested that Mr. Dufreche seek follow-up
treatment from Dr. Coco at IMS. Mr. Adams helped Mr. Dufreche get an
appointment with Dr. Coco on June 12, 2012. Mr. Dufreche’s appointment with
Dr. Coco lasted about forty-five minutes. According to Mr. Dufreche, Dr. Coco
told Mr. Dufreche that he believed Mr. Dufreche’s malaise symptoms were likely
the result of a virus that would run its course and about which Mr. Dufreche need
not worry. Nevertheless, at Mr. Dufreche’s request, Dr. Coco ordered an HIV viral
load blood test for Mr. Dufreche, also called the HIV-RNA quantitative test, which
measures active viruses in the body. The results took a few weeks to come back.
According to Mr. Dufreche, at the conclusion of his appointment, Dr. Coco
informed him that Dr. Coco would notify him of the results of the test when they
came in.
Dr. Coco received the results of Mr. Dufreche’s HIV test at IMS on June 19,
2012, and he reviewed them on June 21, 2012. The test showed Mr. Dufreche had
HIV and a high viral load.2 Dr. Coco did not notify Mr. Dufreche when he received
the results of Mr. Dufreche’s HIV test, nor did anyone else at IMS. Consequently,
Mr. Dufreche never had a follow-up appointment with Dr. Coco. According to the
record, Dr. Coco reviewed Mr. Dufreche’s test results again several months later so
2 Viral load is used to determine the amount of HIV in the blood. The higher the load, the more susceptible the patient is to becoming ill because of HIV.
2 he could sign Mr. Dufreche’s medical chart. Again, Mr. Dufreche was not notified
of the test results.
According to Dr. Coco, it is and always has been his practice to have his
office staff request that patients schedule follow-up appointments when ordering
HIV tests so that the results of the test could be discussed with the patient in
person. Dr. Coco maintained that he never discusses the results of HIV tests with
patients via telephone because of the sensitive nature of communicating such test
results and the need to provide some counseling and treatment options to the
patient. Nevertheless, Dr. Coco, nor anyone from his staff, could recall or
definitively show through Mr. Dufreche’s medical records or otherwise whether
Mr. Dufreche was ever informed of this policy or asked to schedule a follow-up
appointment. Mr. Dufreche maintains that he was never told that a follow-up
appointment needed to be scheduled, and he heard nothing further from Dr. Coco.
When he received no communication from Dr. Coco or IMS and his symptoms
subsided, Mr. Dufreche assumed that, as Dr. Coco had said, his symptoms were the
result of a virus that had run its course and the results of the HIV test were
negative.
Fifteen months passed, during which Mr. Dufreche was unaware that he was
HIV positive. In September 2013, after he could not get an appointment with Dr.
Bowers, Mr. Dufreche sought treatment from another primary care physician, Dr.
Kenneth Combs, for small spots on his left leg, sinus issues, and a flu shot. At Mr.
Dufreche’s request, Dr. Combs ordered an HIV anti-body western blot test. The
test was positive. Before Dr. Combs could notify Mr. Dufreche of his positive HIV
test, a social worker with the Louisiana State Department of Health (“LDH”)
contacted Mr. Dufreche and offered him help in finding medical care due to a
3 blood test that had been reported to the LDH. When Mr. Dufreche met with the
social worker from the LDH in person a few days later, he learned the positive
blood test in the LDH’s possession was the one from Dr. Coco’s office that was
performed in June 2012. This was the first time Mr. Dufreche was notified he was
HIV positive, and he immediately sought treatment from Dr. Bowers.
Mr. Dufreche filed a request for a medical review panel on September 27,
2014. The panel unanimously concluded that there was a material issue of fact
bearing on Dr. Coco’s and IMS’s liability for the court’s consideration on the
following issues:
1. Whether or not the patient was notified of Dr. Coco’s office policy to make a follow-up appointment in reporting HIV test results.
2. Whether CDC guidelines indicate that the communication of positive HIV test results should not be communicated by telephone or mail and follow-up appointments are recommended.
3. Whether Mr. Dufreche was offered a follow-up appointment by Dr. Coco or his staff, as Dr. Coco’s medical records do not reflect a written policy to indicate how HIV test results are communicated or whether the patient was offered a follow-up appointment, nor do they reflect whether the patient attempted to obtain his results.
On April 26, 2017, Mr. Dufreche filed a petition for damages in Orleans
Parish Civil District Court, naming Dr. Coco and IMS as defendants. He alleged
that Dr. Coco and IMS deviated from the applicable standard of care of a physician
and a physician’s clinic by mismanaging Mr. Dufreche’s medical care, failing to
advise Mr. Dufreche of his positive HIV status, and failing to follow-up on medical
tests ordered and sent from IMS. Mr. Dufreche further alleged that, because of Dr.
Coco’s and IMS’s negligence, he went unaware that he was HIV positive for
4 approximately fifteen months, suffered a delay in treatment for his medical
condition, and suffered from the psychological shock of learning that he had HIV
by the LDH via telephone. He also alleged emotional distress from worry over his
prognosis in treating HIV due to the delay in treatment and from not knowing
whom he may have infected during the fifteen-month period in which he was
unaware he was HIV positive.
The matter proceeded to bench trial on April 15-16, 2019. Prior to trial, the
parties stipulated that Mr. Dufreche’s damages were less than $50,000. At trial,
Mr. Dufreche called himself; Dr. Coco; medical review panelist Dr. Eric
Ehrensing, who opined about the applicable standard of care; his friend Mr.
Adams; and LDH social worker Mary Boutte, who first informed Mr. Dufreche
about the positive HIV test results from Dr. Coco’s office. IMS and Dr. Coco also
called Dr. Coco; Dr. Bowers; and IMS employees Crandall Warren and Lauren
Bergeron, who both testified about the standard practice at IMS that patients must
schedule follow-up appointments to receive the results of HIV tests in person.
At the conclusion of trial, the trial court found that Dr. Coco and IMS had
breached the applicable standard of care and negligently caused Mr. Dufreche
emotional distress as a result. The trial court also awarded Mr. Dufreche $45,000
in damages.
From this judgment, Dr. Coco and IMS now appeal.
DISCUSSION
On appeal, Dr. Coco and IMS assign four assignments of error. First, they
argue the trial court erred in finding they breached applicable standard of care by
expecting Mr. Dufreche to follow-up with their office to obtain his HIV test results
in person. Second, they argue the trial court erred in not assessing comparative
5 fault to Mr. Dufreche for his failure to follow-up and mitigate his damages by not
complying with medical advice to practice safe sex. Third, they argue the trial
court erred in refusing to allow cross-examination of Mr. Dufreche on his safe sex
practices to demonstrate his lack of credibility. Finally, they argue the trial court
erred in finding Dr. Coco and IMS caused Mr. Dufreche damages for negligent
infliction of emotional distress when there was no evidence at trial that Dr. Coco or
IMS acted outrageously. We address each assignment of error in turn.
La. R.S. 9:2794 governs a plaintiff’s burden of proof against a physician for
medical malpractice:
A. In a malpractice action based on the negligence of a physician…the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians…licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians…within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
Therefore, in order to prevail on his claim and recover damages against IMS
and Dr. Coco, who in this matter specialized as an infectious disease physician,
Mr. Dufreche needed to establish: (1) the degree of knowledge or skill or the
degree of care ordinarily exercised by infectious disease physicians and
physician’s clinics; (2) that Dr. Coco and IMS either lacked that degree of
6 knowledge or skill or deviated from the standard of care in treating Mr. Dufreche;
and (3) that, due to Dr. Coco’s and IMS’s failure to exercise reasonable care or
possess the degree of knowledge or skill necessary, they caused injury—here,
emotional distress—to Mr. Dufreche that would not have otherwise occurred. In
awarding damages, the trial court found that Mr. Dufreche met this burden.
Breach of the Standard of Care
In their first assignment of error, Dr. Coco and IMS contend the trial court
erred in finding that they breached the applicable standard of care owed to Mr.
Dufreche by expecting him to follow-up to receive his HIV test results in person.
They argue that it was their standard practice to require patients to return for an in-
person appointment to receive HIV test results. They argue that, based on
recommendations from the Center of Disease Control (“CDC”) that were
introduced at trial, as well as the testimony of medical review panelist Dr.
Ehrensing, who testified as an expert in infectious diseases, this practice was
reasonable given the sensitive nature of communicating HIV test results to
patients. They further argue that, because Mr. Dufreche is a sophisticated man who
was knowledgeable about HIV testing and who specifically requested the HIV test
Dr. Coco ordered, the onus was on him to follow-up to retrieve his test results.
Mr. Dufreche counters that he was never informed of the policy regarding
follow-up appointments by Dr. Coco or any other IMS staff member. Instead,
according to Mr. Dufreche, neither Dr. Coco nor IMS produced any evidence that
they told him of this policy and Mr. Dufreche explicitly testified that he was never
informed of the policy and was instead told that he would be notified when the test
results came back. He also argues that Dr. Ehrensing’s expert testimony
established that Dr. Coco’s and IMS’s failure to inform Mr. Dufreche of their
7 policy requiring follow-up appointments to retrieve HIV test results was a breach
of the standard of care, and thus, the trial court correctly found that Dr. Coco and
IMS breached the standard of care.
“In civil cases, including medical malpractice cases, Louisiana appellate
courts apply the manifest error or clearly wrong standard of review to a trier of
fact’s factual findings.” Serpas v. Tulane Univ. Hosp. & Clinic, 2013-1590, p. 12
(La. App. 4 Cir. 5/14/14), 161 So.3d 726, 736 (citing Jackson v. Tulane Medical
Center Hosp. and Clinic, 2005-1594, p. 5 (La. 10/17/06), 942 So.2d 509, 512). See
also Johnson v. Ray, 2012-06, 2012-07, p. 6 (La. App. 4 Cir. 12/5/12), 106 So.3d
629, 635 (internal citation omitted). “Under that standard, an appellate court may
not set aside the findings of the trier of fact…unless the findings are clearly wrong
or manifestly erroneous.” Id. (citing Detraz v. Lee, 2005-1263, p. 7 (La. 1/17/07),
950 So.2d 557, 561; Stobart v. State Through Dep’t of Transp. and Dev., 617
So.2d 880, 882 (La. 1993); Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)).
In reviewing a fact finder’s determination, “an appellate court must be
cautious not to re-weigh the evidence or to substitute its own factual findings just
because it would have decided the case differently.” Eisenhardt v. Snook, 2008-
1287, pp. 6-7 (La. 3/17/09), 8 So.3d 541, 545 (citing Ambrose v. New Orleans
Police Dep’t Ambulance Service, 1993-3099, (La. 7/5/94), 639 So.2d 216, 221).
“Where there are two permissible views of the evidence, the fact-finder's choice
cannot be manifestly erroneous or clearly wrong.” Wallace v. Howell, 2009-1146,
p. 2 (La. App. 4 Cir. 1/13/10), 30 So.3d 217, 218. See also Rosell, 549 So.2d at
844. In medical malpractice cases, “[w]hen there is conflicting expert testimony
concerning the defendant’s compliance with the standard of care, the reviewing
court will give great deference to the fact-finder's conclusion.” Serpas, 2013-1590,
8 p. 13, 161 So.3d at 736-37 (citing Landeche v. McSwain, 1996-0959, p. 10 (La.
App. 4 Cir. 2/5/97), 688 So.2d 1303, 1309).
Based on a review of the record, the trial court did not commit manifest error
in finding that Dr. Coco and IMS breached the standard of care. Although Dr.
Coco and IMS contend otherwise, there was no determination that the policy
requiring in-person follow-up appointments to obtain HIV test results was a breach
of the standard of care. The record shows that Dr. Ehrensing’s expert opinion was
that the policy was reasonable given the sensitive nature of giving positive HIV
test results to patients and the possibility that physicians will need to provide
counseling and treatment options to their patients when they receive the news that
they are HIV positive. Rather, the breach occurred when Dr. Coco and IMS failed
to notify Mr. Dufreche of the policy requiring patients to schedule in-person
follow-up appointments to obtain their HIV test results. Dr. Coco and IMS did not
produce any evidence that they notified Mr. Dufreche of the policy, only that it
was their “pattern and practice” to notify patients of the policy. Dr. Ehrensing
opined that it was a breach of the standard of care for Dr. Coco and IMS to fail to
notify Mr. Dufreche of the policy. Additionally, Dr. Coco himself testified that, as
an infectious disease physician, it was his duty to prevent the spread of HIV. Dr.
Coco did not serve this duty when he failed to notify a patient whom Dr. Coco
knew was HIV positive that the patient had HIV. Therefore, the record supports the
trial court’s ruling that Dr. Coco and IMS breached the standard of care.
Comparative Fault
Next, we address Dr. Coco’s and IMS’s second assignment of error
concerning the allocation of fault. Dr. Coco and IMS argue the trial court erred in
assessing one hundred percent of the fault for Mr. Dufreche’s damages to them
9 while failing to find Mr. Dufreche comparatively at fault for his failure to follow-
up on obtaining his HIV test results. They argue Mr. Dufreche had a duty to
follow-up on a test he requested. They further contend that some of the emotional
distress Mr. Dufreche suffered as a result of worrying that he may have infected
others with HIV while he was unaware he had HIV was caused by Mr. Dufreche’s
failure to practice safe sex, despite evidence in the record that showed several
medical professionals counselled Mr. Dufreche to do so.
“As with other factual determinations, the trier of fact is vested with much
discretion in its allocation of fault.” Duncan v. Kansas City S. Ry. Co., 2000-0066,
p. 10 (La. 10/30/00), 773 So.2d 670, 680 (citing Clement v. Frey, 1995-1119, p. 5
(La. 1/16/96), 666 So.2d 607, 609). “Therefore, an appellate court should only
disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly
erroneous.” Id., 2000-0066, pp. 10-11, 773 So.2d at 680 (citing Clement, 1995-
1119, p. 7, 666 So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335
(La. 1977)).
A review of the record shows that the trial court was not manifestly
erroneous in its allocation of fault. As discussed previously, the record supports the
trial court’s conclusion that Dr. Coco and IMS did not inform Mr. Dufreche of
their policy requiring follow-up appointments to retrieve HIV test results.
Furthermore, Mr. Dufreche and Dr. Coco testified that this was Mr. Dufreche’s
first and only visit to Dr. Coco’s office, showing that Mr. Dufreche would have no
other way of knowing of the policy aside from being informed by Dr. Coco or
another IMS staff member at his appointment. Mr. Dufreche testified that Dr. Coco
assured him multiple times that he likely had nothing to worry about because his
symptoms were likely caused by a virus and that, if the tests showed something
10 that would cause concern, Dr. Coco or IMS would let him know. This supports the
trial court’s conclusion that the onus was on Dr. Coco and IMS to contact Mr.
Dufreche when his HIV test came back with a positive result. It is undisputed that
Dr. Coco, nor anyone else at IMS, contacted Mr. Dufreche with his results.
Likewise, the record supports the finding that Mr. Dufreche’s emotional
distress came from the fifteen-month delay in learning of his diagnosis because he
worried about how the delay would affect his treatment of HIV, his future
prognosis, and whom he may have infected in the meantime. This assignment of
error lacks merit.
Cross-examination of Mr. Dufreche
We next address IMS’s and Dr. Coco’s third assignment of error, wherein
they contend the trial court erred in refusing to allow them to cross-examine Mr.
Dufreche on his safe sex practices after Mr. Dufreche learned he was HIV positive.
Dr. Coco and IMS argue this cross-examination was necessary to establish that,
despite his statements to the contrary, Mr. Dufreche’s alleged emotional distress
caused by the fifteen-month delay in learning he was HIV positive was not genuine
and truthful. Instead, Dr. Coco and IMS contend that Mr. Dufreche did not practice
safe sex after learning of his diagnosis, which they argue demonstrates Mr.
Dufreche’s lack of credibility in his testimony about his emotional distress. They
argue that the trial court would have determined Mr. Dufreche was not credible
had they been allowed to cross-examine Mr. Dufreche on his sexual practices after
he learned he was HIV positive, and this court should reverse the trial court’s
judgment as a result.
We review the trial court’s refusal or admission of certain testimony based
on an abuse of discretion standard of review. Miller v. S. Baptist Hosp., 2000-1352,
11 p. 15 (La. App. 4 Cir. 11/21/01), 806 So.2d 10, 21. “[T]he trial court is accorded
vast discretion concerning the admission of evidence, and its decision will not be
reversed on appeal absent an abuse of that discretion.” Libersat v. J & K Trucking,
Inc., 2000-00192, p. 11 (La. App. 3 Cir. 10/12/00), 772 So.2d 173, 179. “However,
where the trial court has committed error in the admission or refusal to admit
evidence, or in instructing a jury, when the appellate court has all of the facts
before it such error will not warrant remand and the appellate court may make its
own independent conclusion as to the facts as revealed in the record before it.”
Miller, 2000-1352, pp. 15-16, 806 So.2d at 21 (citing Parmelee v. Martin Marietta
Michoud Aerospace, Inc., 566 So.2d 441, 444 (La. App. 4 Cir. 1990)).
Furthermore, “[w]hen findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard demands great
deference to the trier of fact’s findings; for only the factfinder can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s
understanding and belief in what is said.” Rosell, 549 So.2d at 844.
Here, the record supports the trial court’s determination that Mr. Dufreche
was credible in his testimony about the emotional distress he suffered in learning
he had gone fifteen months without knowing he was HIV positive. Mr. Dufreche
testified that he lost sleep and could not eat due to his emotional distress and that
he worried what affect the delay would have on his prognosis in treating HIV.
Additionally, the record shows that Mr. Dufreche first learned he was HIV positive
over the telephone from Ms. Boutte, a social worker with the LDH. Learning he
was HIV positive via telephone further exacerbated his worries because, as Dr.
Coco and Dr. Ehrensing testified, communicating the results of a positive HIV test
should be done in person. This assignment of error lacks merit.
12 Damages for Negligent Infliction of Emotional Distress
Finally, we address IMS’s and Dr. Coco’s last assignment of error. They
argue that the trial court erred in awarding damages to Mr. Dufreche for his
negligent infliction of emotional distress claims. Here, Mr. Dufreche alleged that
Dr. Coco and IMS committed medical malpractice by negligently causing him
emotional distress without causing him bodily harm or physical injury. The
seminal case in Louisiana governing claims of negligent infliction of emotional
distress without bodily harm is Moresi v. State Through Dep’t of Wildlife &
Fisheries, 567 So.2d 1081 (La. 1990). In Moresi, the Louisiana Supreme Court
held that, generally, Louisiana jurisprudence does not impose liability upon
defendants for plaintiffs’ claims of emotional distress without accompanying
physical injury, illness, or other bodily harm.
In certain “special circumstances,” however, a plaintiff can recover against a
defendant for emotional distress without physical injury, so long as the plaintiff
shows “genuine and serious mental distress, arising from the special
circumstances, which serves as a guarantee that the claim is not spurious.” Id. at
1096. In addition, “[f]or a cause of action for intentional or negligent infliction of
emotional distress, there must be proof that the defendant violated some legal duty
to the plaintiff, and the plaintiff must meet the heavy burden of proving outrageous
conduct by the defendant.” Succession of Harvey v. Dietzen, 1997-2815, p. 10 (La.
App. 4 Cir. 6/24/98), 716 So.2d 911, 917. See also Simmons v. State, 2018-0174, p.
5 (La. App. 4 Cir. 8/29/18), 255 So.3d 701, 705, writ denied, 2018-1613 (La.
12/17/18), 259 So.3d 345. In the context of a medical malpractice action, “in order
to prove entitlement to damages for negligent infliction of emotional distress, the
13 [plaintiff] must prove that defendant committed malpractice.” Gonzales v. Ochsner
Clinic Found., 2014-873, p. 11 (La. App. 5 Cir. 5/14/15), 170 So.3d 1099, 1106.
Whether the trial court properly awarded Mr. Dufreche damages for his
negligent infliction of emotional distress claim against IMS and Dr. Coco turns on
whether Mr. Dufreche demonstrated that IMS and Dr. Coco committed
malpractice, that IMS’s and Dr. Coco’s conduct was outrageous, and that their
conduct caused Mr. Dufreche genuine and serious mental distress. Furthermore, in
assessing the conduct of Dr. Coco and IMS, “[t]he susceptibility of a particular
plaintiff should be taken into account whether the defendant intended or
negligently inflicted severe emotional distress.” Succession of Harvey, 1997-2815,
p. 10, 716 So.2d at 917.
IMS and Dr. Coco argue the trial court did not properly award damages to
Mr. Dufreche because there was no evidence adduced at trial that their actions
were outrageous or caused Mr. Dufreche severe emotional distress. Mr. Dufreche
counters that Dr. Coco’s and IMS’s conduct in receiving the HIV test results,
reviewing them, and not taking steps to notify Mr. Dufreche of the results meets
the standard of outrageous conduct and the trial court properly awarded damages.
We agree.
We find that the trial court properly found that Dr. Coco and IMS committed
malpractice and caused Mr. Dufreche emotional distress. Dr. Coco and IMS
produced no evidence at trial that they notified Mr. Dufreche of their policy that he
needed to make a follow-up appointment to obtain his test results in person.
Instead, the record shows that Dr. Coco received Mr. Dufreche’s test results,
reviewed them on two separate occasions, and yet, took no steps to notify Mr.
Dufreche that he was HIV positive. Meanwhile, Dr. Ehrensing provided
14 uncontroverted expert testimony that Dr. Coco’s and IMS’s failure to notify Mr.
Dufreche of the policy was a breach of the standard of care. This is particularly
true in light of the evidence at trial—including the testimony of Dr. Coco
himself—that it was Dr. Coco’s duty as an infectious disease specialist to prevent
the spread of HIV. Additionally, Dr. Coco and Mr. Dufreche both testified that
they discussed Mr. Dufreche’s regular HIV testing during Mr. Dufreche’s
appointment with Dr. Coco, showing that Dr. Coco was aware that Mr. Dufreche
was particularly susceptible to worries about whether or not he was HIV positive.
Likewise, the trial court did not abuse its discretion in its determination that Mr.
Dufreche gave credible testimony about his emotional distress caused by the
fifteen-month delay in learning of his HIV diagnosis being genuine and severe.
There is nothing in the record to suggest that Mr. Dufreche’s emotional distress
was unreasonable in light of the evidence produced at trial. This assignment of
DECREE
For the foregoing reasons, we affirm the trial court’s judgment finding that
Dr. Coco and IMS breached the applicable standard of care in their treatment of
Dr. Dufreche and awarding Mr. Dufreche $45,000 in damages.
AFFIRMED