KERINS v. HARTLEY

Reset A A Font size: Print

Court of Appeal, Second District, Division 2, California.

Jean R. KERINS, Plaintiff and Appellant, v. Mary Kathleen HARTLEY, as Special Administratrix, etc., et al., Defendants and Respondents.

No. B 065917.

Decided: July 30, 1993

Alvin L. Pittman, Los Angeles, for plaintiff and appellant. Kirtland & Packard, Harold J. Hunter, Jr., Los Angeles, Hagenbaugh & Murphy, David F. Berry, Raymond R. Moore, Glendale, Greines, Martin, Stein & Richland, Irving H. Greines and Barbara W. Ravitz, Beverly Hills, for defendants and respondents.

Introduction

In a lawsuit filed against defendants and respondents, Dr. James S. Gordon, M.D., and his partners in medical practice, Dr. Marki J. Knox, M.D., Dr. Karen Blanchard, M.D. and Associates, Inc., and the Women's Medical Group of Santa Monica, a California general partnership, plaintiff and appellant, Jean R. Kerins, sought general and punitive damages, including health care expenses, lost past and future earnings, and compensation for severe mental anguish and emotional distress, which she allegedly suffered upon discovering that Dr. Gordon performed surgery upon her to remove a large uterine fibroid tumor at a time when he was infected with Human Immunodeficiency Virus (“HIV”).   Ms. Kerins appeals from the trial court's order granting summary judgment in favor of respondents, who now include the special administratrix of the estate of James Gordon, substituted as a party defendant and respondent following Dr. Gordon's death due to AIDS (Acquired Immune Deficiency Syndrome) on July 11, 1990.   Although the facts are relatively simple, the case raises questions of first impression for the State of California.

The Facts

The few undisputed facts established by the parties' pleadings include the following.   In June 1986, appellant was experiencing severe abdominal pain.   She consulted Dr. Gordon, one of the physicians of Women's Medical Group of Santa Monica (“WMG”), about the problem.   Dr. Gordon's diagnosis of a probable fibroid tumor was confirmed by ultrasound.   After a conservative approach to treatment proved ineffective, and the tumor continued to grow, appellant was advised to undergo surgery.

On November 5, 1986, Dr. Gordon performed surgery on appellant, consisting of an exploratory laparotomy, lysis of peritoneal adhesions, multiple myomectomies, uterine reconstruction and repair of the broad ligament.   The detailed operative report of the surgery does not indicate that any cuts were sustained by Dr. Gordon, or that there were any other unusual occurrences during the lengthy surgery.

On November 10, 1986, Dr. Gordon received the results of T–Cell panel blood tests administered on dates uncertain between November 3 and 6, 1986.   The tests indicated that Dr. Gordon was infected with HIV, the probable causative agent of AIDS.   Shortly thereafter, Dr. Gordon informed the other respondents of his test results, but continued actively practicing medicine with WMG.

At a disputed point in time, Dr. Gordon developed AIDS.   On April 21, 1988, he announced his illness on a televised news broadcast seen by appellant.   The announcement was broadcast in the context of a news story about an AIDS discrimination lawsuit filed by Dr. Gordon against the other defendants, who had refused to permit him to return to his surgical practice upon recovering from an AIDS-related illness.   The televised broadcast also featured statements by Dr. Gordon's partners, Drs. Knox and Blanchard, commenting on the frequency with which surgeons cut or poked themselves with knives or needles during surgical procedures, criticizing Dr. Gordon's refusal to obtain informed consent for surgery by advising patients of his illness, and explaining that their patients must be protected from even the remote risk of exposure to AIDS.1

Within a day of the news broadcast, appellant underwent a test for HIV.   Approximately two weeks later, she received test results negative for the presence of HIV antibodies.

It was undisputed that using testing methods available in April 1988, 95 percent of HIV-infected individuals tested positive for HIV antibodies within six months of the date of transmission.2

At all times relevant to the instant lawsuit, AIDS was known to be fatal in 100 percent of cases and had no known cure.

Little else about the case is undisputed.   Dr. Gordon and his colleagues denied having actual knowledge of Dr. Gordon's HIV-positive status until after November 10, 1986.   Appellant contended, and offered admissions and medical records to prove that Dr. Gordon was already suffering from AIDS and/or illnesses symptomatic of AIDS at the time of the surgery and knew or reasonably should have known of his illness.

Appellant's pleadings and supporting declarations aver that she went to Dr. Gordon and WMG because she knew of their commitment to patient-involved decision-making and informed consent.   She expressed particular concern to Dr. Gordon about the danger of contracting AIDS from blood transfusions and was advised to and did store some of her own blood in case the need for transfusion of blood arose during surgery.   According to appellant, in a pre-surgery interview, she specifically asked Dr. Gordon, “ ‘How is your health?’ ”   In response, “ ‘he physically jumped back and stared at [Plaintiff] for several seconds' ” and finally answered, “ ‘Well, I go to the gym regularly and I run every morning.’ ”   Appellant claims that the response was deliberately deceitful in the face of Dr. Gordon's admissions that he knew he was in a high risk group for AIDS, entries in his medical records showing that he frequently sought medical attention in late 1985 through 1986 for a variety of ordinarily common ailments including colds, flu, and a skin rash, and admissions that he underwent T–Cell panel testing about the time of appellant's surgery.

Respondents and Dr. Gordon denied having discussions with appellant in which she expressed fear of contracting AIDS from blood transfusions or in which she directly asked Dr. Gordon whether he was healthy.

The magnitude and reasonableness of appellant's claimed emotional distress due to her unabated fear of developing AIDS despite negative HIV test results was also contested by respondents.

Based on data from scientific articles and journals,3 respondents asserted in their statement of undisputed material facts that the risk of HIV transmission with actual percutaneous exposure to the blood of an HIV-infected individual is approximately 0.3 percent;  that there were no known instances of a medical doctor transmitting the HIV virus to a patient;  and that of a total of 4,703 patients studied of HIV-positive surgeons, there were no documented cases of HIV transmission from infected surgeon to patient.

Appellant did not dispute the existence of such studies;  rather, she disputed their relevance.   She argued the genuineness and objective reasonableness of her fear of developing AIDS based on the July 12, 1991 issue of the Morbidity and Mortality Weekly Report, a publication of the U.S. Department of Health and Human Services Centers for Disease Control (CDC).  (Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure–Prone Invasive Procedures (1991) 40 CDC Morbidity and Mortality Weekly Report 1 [hereafter CDC Recommendations].)   The report documents one known case of an infected dentist transmitting AIDS to five patients, and concludes, inter alia, that investigations documenting a low risk of HIV or AIDS transmission from infected health care worker (HCW) to patient are inconclusive because a “precise estimate of the risk of HIV transmission from infected HCWs to patients can be determined only after careful evaluation of a substantially larger number of patients whose exposure-prone procedures have been performed by HIV-infected HCWs.”

The CDC's July 1991 report also makes recommendations for prevention of transmission of HIV by HCWs including, but not limited to, the following:  “HCWs who are infected with HIV ․ should not perform exposure-prone procedures unless they have sought counsel from an expert review panel and been advised under what circumstances, if any, they may continue to perform these procedures.   Such circumstances would include notifying prospective patients of the HCW's seropositivity before they undergo exposure-prone invasive procedures.  [Fn. omitted.]”  (CDC Recommendations, supra, at p. 5.)   Exposure-prone invasive procedures are defined to include “digital palpation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site.”  (CDC Recommendations, supra, at p. 4.)   “Obstetric/gynecological” procedures such as those performed by Dr. Gordon on appellant are classified as “exposure-prone” under current CDC Guidelines.   (Gostin, CDC Guidelines on HIV or HBV–Positive Health Care Professionals Performing Exposure–Prone Invasive Procedures (1991) 19 Law, Medicine & Health Care 140.) 4

To show the reasonableness of her fear of developing AIDS, appellant also offered excerpts from the deposition testimony of Dr. William T. O'Connor, M.D.   According to Dr. O'Connor, certain persons will continue to test negative for HIV antibodies for prolonged periods of time after exposure even though they have been infected with the virus;  therefore, even if appellant's test results were negative for the next 25 years, she could not be 100 percent certain that Dr. Gordon did not infect her on November 5, 1986.

Following a lengthy hearing, the trial court granted respondents' motion for summary judgment.   Appellant filed a motion for reconsideration of the order granting the motion, which was argued and denied.   The trial court's final, amended order granting summary judgment indicates that the motion was granted based on two findings:  (1) that under Thing v. LaChusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (hereafter Thing ), appellant's fear of acquiring AIDS was unreasonable as a matter of law;  and (2) under authority of Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (hereafter Cobbs ), there was no battery as a matter of law because Dr. Gordon performed the agreed upon surgical procedure.   Our review is limited to the correctness of the trial court's findings on the peculiar facts presented.

Issues Presented

The Battery Cause of Action

The trial court's finding of no battery as a matter of law was based on the Supreme Court's holding in Cobbs, supra, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1.   The plaintiff in Cobbs suffered severe complications following recommended surgery for treatment of a peptic duodenal ulcer.   The surgeon had explained the nature of the operation to the plaintiff, but had not discussed any of the risks inherent in the operation, including the complications actually suffered by the plaintiff.   The plaintiff argued, among other theories of liability, that a technical battery was committed because his consent to the surgery was vitiated by the surgeon's failure to advise him of the known risks.

The Supreme Court agreed with the majority of appellate court decisions which had limited liability for battery to those circumstances when a doctor performs an operation to which the patient has not consented.  (Cobbs, supra, 8 Cal.3d at p. 240, 104 Cal.Rptr. 505, 502 P.2d 1.)   The court declared that when a doctor in obtaining consent violates his due care duty to disclose pertinent information, and an undisclosed inherent low probability complication occurs, the action should be pleaded in negligence.  (Ibid.)

Appellant takes exception to the trial court's reliance on Cobbs, comparing her situation to that of the plaintiffs in Ashcraft v. King (1991) 228 Cal.App.3d 604, 278 Cal.Rptr. 900 (hereafter Ashcraft ) and Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 203 Cal.Rptr. 556 (hereafter Grieves ).   In Ashcraft, a surgeon performed an operation to correct the scoliosis of a teenage girl, disregarding the request of the girl's parents that only family-donated blood be used during the operation.   The child received a transfusion of nonfamily blood contaminated by HIV.   The trial court granted a motion for nonsuit on the plaintiffs' battery cause of action but the appellate court reversed the judgment.

In Grieves, a pregnant patient consented to have a tubal ligation following the delivery of her child.   The complaint alleged that consent to the operation was expressly conditioned upon the birth of a normal, healthy child.   The tubal ligation was performed and the child died two months later of a genetic disorder.   The reviewing court found that the complaint alleged facts sufficient to state a cause of action for battery, and granted a writ of mandate reversing the lower court's order sustaining a demurrer.   Cobbs was discussed and distinguished in both Ashcraft and Grieves.

By analogy, appellant contends that she discussed with Dr. Gordon her fear of contracting AIDS during surgery and asked him directly about his health.   She argues, in essence, that such conduct effectively conveyed the limits of her consent—to be operated on by a healthy doctor.  (See Truman v. Thomas (1980) 27 Cal.3d 285, 293, 165 Cal.Rptr. 308, 611 P.2d 902.)   Dr. Gordon's performance of an invasive surgical procedure at a time when he knew he was infected with HIV therefore constituted a technical battery because, as in Ashcraft and Grieves, there was “an intentional deviation from the consent given.”  (Cobbs, supra, 8 Cal.3d at pp. 240–241, 104 Cal.Rptr. 505, 502 P.2d 1.)   Appellant argues that summary judgment was improvidently granted because there was a triable issue of material fact regarding whether her consent to the surgery was expressly conditioned upon Dr. Gordon's good health.

 Respondents assert that appellant should be foreclosed on appeal from asserting that her consent was expressly conditioned on Dr. Gordon's good health because the “express condition” issue was not raised by her pleadings, and a litigant may not defeat summary judgment by presenting evidence which supports a theory of recovery not pled.   The first amended complaint and appellant's responsive pleadings on summary judgment generally aver that appellant's consent to surgery was vitiated because of Dr. Gordon's failure to disclose his HIV seropositivity during lengthy discussions with appellant about the risks of and alternatives to the proposed surgical procedure.   Appellant's pleadings do not, however, include a specific allegation that her consent was expressly conditioned upon the surgeon's good health.5

Once again, in her motion for reconsideration, appellant did not couch her argument against granting summary judgment on the battery cause of action in terms of an express good health condition.   Rather, she reemphasized Dr. Gordon's heightened duty of disclosure in the face of her vehement expressions of need for disclosure of all facts relevant to an informed decision to undergo the proposed surgery, and WMG's reputation for and professed commitment to informed consent based on full patient disclosure.   (See, e.g., Truman v. Thomas, supra, 27 Cal.3d at p. 291, 165 Cal.Rptr. 308, 611 P.2d 902.)

Finally, however, in the reply to respondents' opposition to the motion for reconsideration, the issue was directly raised when appellant cited Grieves, supra, 157 Cal.App.3d 159, 203 Cal.Rptr. 556 for the proposition that Dr. Gordon committed a technical battery by violating a condition of her consent.   At the argument of the motion for reconsideration, appellant again attempted to distinguish her situation from that in Cobbs, supra, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, on a theory of “express condition”, but the trial court rejected the argument, and found the Cobbs case controlling.   Accordingly, since the “express condition” theory of battery was considered and ruled upon by the trial court, albeit in the context of appellant's reconsideration motion, the issue is cognizable on appeal.  (Cf. Steele v. Totah (1986) 180 Cal.App.3d 545, 551–552, 225 Cal.Rptr. 635.)

 On the merits, respondents agree with the trial court's finding under Cobbs v. Grant.   They also make the argument that appellant's own description of her conversation with Dr. Gordon demonstrates that her consent to surgery was not conditioned on the doctor's good health.   Excerpts from appellant's deposition reveal that she merely asked the question, “ ‘How is your health?’ ”   Upon seeing the doctor's response, she explained to him, “Well, I—I was just worried.   I was just worried about that.   You know, I just want the best person possible to be there for my surgery and I'm just trying to think of all the things that could go wrong.”   Respondents argue that appellant's deposition testimony demonstrates that she was not seeking assurances that Dr. Gordon would not transmit a communicable disease to her.   Rather, she sought to make sure Dr. Gordon would be present at the surgery and that no other doctor substituted.

Respondents' latter argument disregards the settled rules governing motions for summary judgment.   In ruling on such motions, the function of the trial court is “merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Whether appellant's consent to surgery was or was not expressly conditioned upon Dr. Gordon's good health is a factual question for determination at a trial.

Liberally construed, appellant's responsive pleadings established facts arguably supporting her claim that the question about Dr. Gordon's health was motivated by a fear of contracting AIDS, that her consent to the surgery was intended and understood to be expressly conditioned on taking precautions to avoid exposure to contagious diseases and the doctor's health, and further, that Dr. Gordon was aware of his HIV-positive status and the possible onset of symptoms of AIDS, and intentionally violated the “good health” condition because a contrary course of action would have jeopardized his ability to continue practicing surgical medicine.   A legally cognizable cause of action for battery may rest on such facts.  (Cf. Rains v. Superior Court (1984) 150 Cal.App.3d 933, 942, 198 Cal.Rptr. 249.)   The trial court's contrary reading of Cobbs was unduly restrictive.

The Reasonableness of Appellant's Fear of AIDS

 The trial court found that appellant's fear of developing AIDS was unreasonable as a matter of law.   The court's amended order for entry of summary judgment reflects that the finding was based on the following “undisputed” facts:  that appellant underwent testing to detect HIV antibodies within one day of hearing the televised announcement of Dr. Gordon's illness and the test was negative;  that 95 percent of HIV-infected individuals will test positive for antibodies within six months of HIV transmission;  that the risk of HIV transmission with actual percutaneous exposure to the blood of an HIV-infected individual is approximately 0.3 percent per exposure;  that there were no known instances of a medical doctor transmitting the HIV virus to a patient;  and of a total of 4,703 patients studied of HIV-positive surgeons there were no documented cases of HIV transmission from infected surgeon to patient.

The finding of unreasonableness was also based on the responses to interrogatories and admissions of Dr. Gordon, stating:  that prior to performing surgery on appellant he “may” have cut himself during training but never after that time;  that once in 1981, Dr. Blanchard cut him during a surgery, but he did not bleed into the patient;  that prior to performing surgery on appellant he did not believe there was any chance that he would cut himself during a surgery, or if he had cut himself, that any blood would have been expelled into the surgical site.

As authority for the proposition that appellant's fear was unreasonable as a matter of law, the superior court's order cites Thing, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814.   In Thing, a minor was injured when struck by an automobile driven by Mr. LaChusa.   The accident victim's mother, Maria Thing, heard about the accident and rushed to the scene where she saw her bloody and unconscious child, whom she believed was dead, lying in the roadway.   Ms. Thing filed an action for negligent infliction of emotional distress, but the trial court granted the defendants' motion for summary judgment.   The Court of Appeal reversed.   The Supreme Court then granted review to examine the limits of bystander recovery of damages for emotional distress.   Citing the need to restrict recovery of emotional distress damages to “those persons who will suffer an emotional impact beyond the impact that can be anticipated whenever one learns that a relative is injured, or dies, or the emotion felt by a ‘disinterested’ witness” (id. at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814), the high court imposed the following limitations.  “[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff:  (1) is closely related to the injury victim;  (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim;  and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.  [Fns. omitted.]”  (Id. at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814.)

At first blush, Thing appears to have little relevance to appellant's emotional distress claim.   Appellant is not a “bystander,” but rather is the direct victim of the negligent and intentional acts allegedly committed by respondents.   Accordingly, we presume that the trial court's reliance on the Thing case bespeaks its determination that, for reasons of public policy, appellant must not be permitted to recover emotional distress damages based on her fear of developing AIDS absent proof of actual exposure to Dr. Gordon's HIV-infected blood during the surgery and/or proof that there is a reasonable likelihood she will develop AIDS.

Suggesting a breach of the prohibition against judicial determination of the merits of contested fact issues in summary judgment proceedings (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46), appellant highlights the factual nature of the “exposure” question.   She points out that she was in surgery for four and one-half hours, during which time Dr. Gordon's hands and gloves “were in a bloody field.”   Therefore, she argues, it would be “difficult for him or anybody else to conclusively tell if he cut himself.”

Appellant admits she can offer no evidence—other than statistical data documenting the existence of a risk of percutaneous injury and HIV transmission during surgery—to controvert Dr. Gordon's assertion, under oath, that he did not cut or poke himself during surgery.   Statistical data derived from appellant's own exhibits tends to support respondents' claim that, statistically speaking, the risk is minuscule that an infected surgeon will actually suffer a percutaneous injury which results in HIV transmission to a patient.6

In support of the trial court's finding that appellant's fear of AIDS is unreasonable, respondents point to the rapidly growing number of cases protecting HIV- and AIDS-infected persons from unfair discrimination.  (See, e.g., Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 261 Cal.Rptr. 197 [employment discrimination];  Phipps v. Saddleback Valley Unified School Dist. (1988) 204 Cal.App.3d 1110, 251 Cal.Rptr. 720 [school district discrimination];  Jasperson v. Jessica's Nail Clinic (1989) 216 Cal.App.3d 1099, 265 Cal.Rptr. 301 [manicurist's refusal to give pedicure].)   Such cases generally find the risk of contracting AIDS in the public setting to be so speculative that the fear of infection is unreasonable or irrational, and cannot be relied upon to justify discriminatory treatment of infected individuals.   Such cases are of limited value in determining the reasonableness of a patient's fear of infection following performance of an invasive, exposure-prone surgical procedure by an HIV-infected doctor.

Respondents have also assembled an impressive array of so-called AIDS-phobia cases decided in other state and federal jurisdictions.   Outside California, the trial court's decision to grant summary judgment based on a finding of no compensable damages finds ample support.   The majority trend is to disallow recovery of emotional distress damages if the plaintiff fails to plead or prove actual exposure to the AIDS virus, and/or if it has become substantially likely that the plaintiff was not infected and will not develop AIDS.

For example, in Burk v. Sage Products, Inc. (E.D.Pa.1990) 747 F.Supp. 285, a paramedic was stuck by a needle protruding from a container for disposing of used medical syringes.   Several patients afflicted with AIDS were housed on the hospital floor where the needle stick incident occurred.   Thereafter, on five separate occasions the plaintiff underwent testing to detect HIV antibodies, with negative results.   Nevertheless, he filed suit against the manufacturer of the disposable syringe container for emotional distress damages, alleging that he lived in fear of contracting AIDS.   The plaintiff admitted he could not prove that he was stuck with a needle that had been used on an AIDS patient.

The federal district court granted summary judgment for the defendants.   The court found that the plaintiff had suffered no legally cognizable damages because he could not show that he was actually exposed to the AIDS virus, and further, because it appeared to be a medical fact that the plaintiff would not develop AIDS as a result of the needle stick.  (Burk v. Sage Products, Inc., supra, 747 F.Supp. at p. 288;  see also Johnson v. West Virginia University Hospitals, Inc. (1991) 186 W.Va. 648, 413 S.E.2d 889 [emotional distress damages permitted where plaintiff, a hospital security officer, proved actual blood-to-blood exposure to the AIDS virus through a bite inflicted by an AIDS-infected patient, although he tested negatively for HIV antibodies].)

In Doe v. Doe (1987) 136 Misc.2d 1015, 519 N.Y.S.2d 595, a wife filing for divorce sought compensatory damages for fraud and intentional infliction of emotional distress based on her husband's failure to disclose that he had had a homosexual relationship, which placed him at high risk for developing AIDS.   The plaintiff's husband underwent AIDS testing, which proved negative.   The plaintiff refused to submit to a test to validate or disaffirm the fear that she had been exposed to AIDS.   The New York Supreme Court dismissed the plaintiff's action for emotional distress damages based on AIDS-phobia, stating that to permit the action based on such “highly attenuated and speculative allegations” would “open the floodgates of psychological injury or ‘phobia’ cases.”  (Id. 136 Misc.2d 1015, 519 N.Y.S.2d at pp. 599–600;  see also Hare v. State of New York (1991) 173 A.D.2d 523, 570 N.Y.S.2d 125, 127 [emotional distress damages for fear of AIDS denied where a plaintiff bitten by a prison inmate offered no proof that inmate was infected with AIDS, and plaintiff was tested for AIDS antibodies with negative results].)

In Funeral Services by Gregory, Inc. v. Bluefield Community Hospital (1991) 186 W.Va. 424, 413 S.E.2d 79, a hospital released a body to a funeral home for preparation without notifying the mortician that the body was infected with AIDS.   The mortician was admittedly wearing proper protective gear during the embalming procedure, and he was tested for HIV antibodies on four separate occasions with negative results.

The mortician and his wife filed suit against the hospital seeking emotional distress damages based solely on the fear of developing AIDS.   The Supreme Court of Appeals of West Virginia held, inter alia, if a suit for damages is based solely upon a plaintiff's fear of developing AIDS, but there is no evidence of an actual exposure to the virus, the fear is unreasonable and there is no legally compensable injury.7

Recently, in a case remarkably like appellant's, the Court of Appeals of Maryland parted ways with the majority of jurisdictions, and reversed a lower court judgment dismissing a lawsuit for emotional distress damages based solely on two patients' fear of contracting AIDS from an infected surgeon.  (Faya v. Almaraz (1993) 329 Md. 435 [620 A.2d 327] [hereafter Almaraz ].)   The surgeon, Dr. Rudolf Almaraz, was an oncological specialist in breast cancer.   On October 7, 1988, without first disclosing his HIV-positive status to his patient, Dr. Almaraz performed a partial mastectomy and axillary dissection on plaintiff Sonja Faya at Johns Hopkins Hospital in Baltimore.   On November 14, 1989, shortly after developing an illness symptomatic of full-blown AIDS, Dr. Almaraz surgically excised a benign lump from the breast of plaintiff Perry Mahoney Rossi without telling Rossi about his illness.

The plaintiffs first learned of their surgeon's illness from an article appearing in a local newspaper more than a year after Rossi's operation and more than 20 months after Faya's last contact with Dr. Almaraz.   Both plaintiffs immediately underwent blood tests for the AIDS virus, with negative results.

Plaintiffs separately filed suit against the surgeon and Johns Hopkins Hospital.   Both sought compensation for economic and emotional distress damages proximately caused by their exposure to HIV, and resulting fear of developing AIDS.   The trial court dismissed the actions, finding that the plaintiffs had not alleged any legally compensable injury.   The court reasoned that there had been no reported cases of AIDS transmission from a surgeon to a patient, that the plaintiffs had not alleged that Dr. Almaraz failed to use proper barrier techniques, or that any incident or accident occurred during surgery which would have caused the surgeon's blood to enter their bodies, and that plaintiffs tested HIV-negative more than six months after surgery, making it extremely unlikely they would develop AIDS.

The Maryland Court of Appeals issued a writ of certiorari to address the “important and timely issues” raised by the two cases.   Reversing the lower court, the appeals court declined to find the plaintiffs' initial fear of AIDS unreasonable as a matter of law merely because their complaints “did not identify any actual channel of transmission of the AIDS virus.”  (Almaraz, supra, 620 A.2d at pp. 336–337.)   The court reasoned that to require the plaintiffs to allege actual transmission “would unfairly punish them for lacking the requisite information to do so.”  (At p. 337.)

The Maryland court acknowledged that once the plaintiffs “learned of their HIV-negative status more than a year after their respective surgeries, the possibility of their contracting AIDS from Dr. Almaraz became extremely unlikely and thus, as a matter of law, might be deemed unreasonable.”   (Almaraz, supra, 620 A.2d at p. 337.)   Accordingly, the court held, plaintiffs “may only recover for their fear and its physical manifestations which may have resulted from Almaraz's alleged negligence for the period constituting their reasonable window of anxiety—the period between which they learned of Almaraz's illness and received their HIV-negative results.”  (At p. 337.)   Had the plaintiffs not undergone immediate testing “their recovery span would be limited to the same duration, for the fear-relieving information, if known to them, would have been available for their retrieval.”  (At p. 337, fn. 10.) 8

Respondents ask that we reject the “reasonable window of anxiety” approach employed in Almaraz, and follow the majority of jurisdictions which consider emotional distress damages due to a fear of AIDS legally noncompensable unless the plaintiff alleges and proves actual exposure, and it is more probable than not that the plaintiff will actually develop the disease.   They argue that “[r]egardless how genuine the plaintiff's distress, the tort system should not be subjected to the burdens of purely speculative lawsuits and should not award compensation, absent a reliable indicator that the distress is grounded in a likely course of future events.”   Respondents charge that the “already overburdened court system would be swamped with new waves of lawsuits, with every person claiming to be fearful of getting a disease in the future trying to hit the litigation jackpot and, thus, reap a large recovery, without any likelihood that the disease will materialize.”

The strained resources of our judicial system are adequately protected by adherence to a rule which permits recovery of emotional distress damages based on a fear of developing AIDS for the limited period of reasonable mental anguish.   We agree with Almaraz that, whether or not a plaintiff can prove actual blood-to-blood exposure at the hands of AIDS- or HIV-infected surgical personnel, the fear of developing AIDS becomes unreasonable as a matter of law only after the plaintiff has had sufficient opportunity to determine with reasonable medical certainty that he or she has not been exposed to or infected with the AIDS virus.

 Appellant learned of Dr. Gordon's illness during televised news coverage of his AIDS discrimination lawsuit against the other respondents.   It would be unreasonable to assume that at the moment of the broadcast, appellant had at her fingertips the most recent statistical data regarding the remote risk of AIDS transmission to a patient by an HIV-infected surgeon.   Indeed, for some period following the news broadcast, appellant may reasonably have been induced to believe, based on the televised interviews with Dr. Gordon's colleagues, that the risk of surgeon-to-patient AIDS transmission was significant enough to warrant Dr. Gordon's discharge from WMG's medical practice.   In this respect, appellant's situation compares with that of the plaintiffs in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   In Molien, husband and wife were permitted to sue for negligent infliction of emotional damages resulting from a doctor's mistaken syphilis diagnosis.   Similarly, appellant's initial alarm at hearing news that her surgeon had risked infecting patients with AIDS cannot be dismissed as unreasonable as a matter of law.

We also conclude that appellant's unabated emotional distress became unreasonable, ergo, not compensable, once the following events occurred:  she received access to the operative report and/or in some other manner received assurances that no actual exposure to Dr. Gordon's blood had occurred;  she received test results negative for the presence of HIV antibodies;  and she had the opportunity to obtain counseling on the accuracy and reliability of the testing methods employed and the very remote probability of seroconversion more than 18 months after surgery.

The undisputed facts do not negate the possibility that appellant will be able to prove that respondents' allegedly tortious actions resulted in compensable emotional distress damages for that limited period when appellant reasonably believed she had been exposed to and might develop the AIDS virus.   As the magnitude and precise duration of appellant's reasonable suffering remains in dispute, it was error for the trial court to grant respondents' motion for summary judgment based on a finding that no compensable damages were alleged.9

Accordingly, the judgment is reversed.10  Parties are to bear their own costs on appeal.

FOOTNOTES

1.   Excerpts from the deposition of Dr. Marki Knox are included among the exhibits accompanying appellant's pleadings in opposition to summary judgment.   Exhibit 1 of Dr. Knox's deposition is a transcript of the news broadcast heard by appellant, which we quote verbatim:  “A Doctor with AIDS says he is being forced out of his job, so he's suing and he wants five million dollars for what he claims is AIDS discrimination.  [¶] Ann Curry has the story:  [¶] Narrator:  Dr. Jim Gordon is a gynecologist who specializes in helping infertile couples have babies, he also has AIDS.   When he first tested positive, he continued practicing at the Women's Medical Group of Santa Monica.   Then, last January he came down with pneumocystic pneumonia[,] a symptom of the disease.   But when he was well enough to work again he says his partners Marki Knox and Karen Blanchard wouldn't let him back.  [¶] Dr. Gordon:  What they expressed to me was that they were afraid that it would hurt the economic and business aspect of the practice.  [¶] Narrator:  He believes his partners were worried because news of his illness had leaked to patients.   He is suing for five million dollars damage in, what his attorneys call, a case of AIDS discrimination.  [¶] Kathy Hartley:  He is absolutely no more contagious than he was fifteen months ago.   The difference now is public knowledge.   [¶] Narrator:  But Marki Knox and Karen Blanchard insist the problem is safety, not economics.  [¶] Karen Blanchard:  I will not expose my patients to that potential danger of whatever risk it is without them having informed consent, and Dr. Gordon refuses to inform his patients that he has this problem.  [¶] Narrator:  They insist patients should be protected even though the risk is remote.  [¶] Marki Knox:  I don't think we can say that that surgeon may not represent a risk if he pokes himself with a needle, if he cuts himself with a knife, if he spills blood into the wound and we know that this happens all the time.  [¶] Narrator:  Dr. Gordon says he has offered to work without patient contact.   His own doctor says that compromise is not even necessary.  [¶] Dr. Steven Knight:  It is my considered medical opinion that Dr. Gordon's return to the work place even without the self-imposed limitations represents absolutely no risk of contagion to colleagues, co-workers or patients.”

2.   More accurate tests are presently available.   Appellant's own expert, Dr. William T. O'Connor, testified that the accuracy of currently available HIV antibody testing methods is 99.8 percent.   However, appellant has refused to be retested because of her professed inability to endure the emotional trauma associated with testing, and the fact that even using current testing methods, negative results will not rule out with 100 percent certainty the admittedly remote possibility that she has been infected.

3.   The following articles were appended as exhibits to the motion for summary judgment:  Horsburgh et al., Duration of Human Immunodeficiency Virus Infection Before Detection of Antibody (1989) The Lancet 637;  Henderson et al., Risk for Occupational Transmission of Human Immunodeficiency Virus Type I (HIV—I) Associated with Clinical Exposures (1990) 113 Annals of Internal Medicine 740;  Sacks, AIDS in a Surgeon (1985) 313 New England Journal of Medicine 1017;  Mishu et al., A Surgeon with AIDS:  Lack of Evidence of Transmission to Patients (1990) 264 Journal of the American Medical Association 467;  Armstrong et al., Investigation of a Health Care Worker with Symptomatic Human Immunodeficiency Virus Infection:  An Epidemiological Approach (1987) 152 Military Medicine 414;  and Porter et al., Management of Patients Treated by Surgeon with HIV Infection (1990) The Lancet 113.)

4.   In 1986, published CDC Guidelines did not recommend mandatory testing and screening of HCWs performing invasive surgical procedures.   Nor did the 1986 guidelines require notification of prospective patients of a HCW's seropositivity before such procedures were performed.  (Barnes et al., The HIV–Infected Health Care Professional:  Employment Policies and Public Health (1990) 18:4 Law, Medicine & Health Care 311.)

5.   Although the “express condition” argument is not made, in excerpts from appellant's deposition testimony which are appended to the pleadings in opposition to summary judgment, appellant describes the pre-operative conversations in which she discussed her fear of acquiring AIDS from a blood transfusion, and asked Dr. Gordon about his health.

6.   The July 12, 1991 issue of CDC Morbidity and Mortality Weekly Report, supra, estimates that the risk of percutaneous injury of surgical personnel is approximately 6.9 percent.   The risk of HIV transmission from HCW to patient after such percutaneous exposure is estimated to be only 0.3 percent.   Using these figures, respondents calculate that the hypothetical odds of a patient acquiring AIDS from an infected surgeon is one in fifteen thousand.   Assuming the probability of seroconversion following a negative HIV antibody test administered in 1988 is no more than one in twenty (5 percent)—a fact conceded by appellant—respondents conservatively estimate that appellant's risk of developing AIDS is at most one in three hundred thousand.   Using more recent HIV transmission statistics, and assuming appellant tested negatively using current, more accurate HIV antibody testing methods, respondents postulate that the appellant's overall risk of developing AIDS is infinitesimal—only one in twenty-four million.

7.   Respondents have also furnished a copy of a slip opinion in an AIDS-phobia case decided in Pennsylvania.   In Lubowitz v. Albert Einstein Medical Center et al. (1993) 424 Pa.Super. 468, 623 A.2d 3, the plaintiffs were husband and wife participants in an in vitro fertilization program.   Several months after the plaintiff-wife underwent an in vitro fertilization, she was informed that donated placental blood used in the procedure had tested positive for AIDS antibodies.   When retested, however, the placental blood donor's blood proved negative for AIDS antibodies.   The plaintiff-wife also underwent AIDS antibody testing, with negative results.   The defendants asserted that the initial test performed on the placental donor's blood was a false positive.   The plaintiffs filed suit seeking emotional distress damages based on the fear of developing AIDS.   The trial court granted summary judgment.   The Superior Court of Pennsylvania affirmed, holding that plaintiffs had stated no legally cognizable injury, given Ms. Lubowitz's asymptomatic state.   The court further stated that if Ms. Lubowitz were to develop AIDS as the result of the in vitro procedure, she would have a cause of action for a compensable injury at that time.

8.   Respondents must also be credited with bringing to this court's attention the Tennessee case of Carroll v. The Sisters of St. Francis Health Services, Inc. 1992 WL 276717 (Tenn.App.1992).   In the Carroll case, the intermediate appellate court ruled that the plaintiff, a hospital visitor who was pricked by discarded hypodermic needles, should be permitted to recover for her fear of contracting AIDS during the limited period of reasonable mental anguish, i.e., between the time she was pricked with possibly AIDS-contaminated needles until other factors, such as HIV-negative test results, made her fear unreasonable.   The hospital's appeal to the Tennessee Supreme Court was granted on February 22, 1993, and the matter has not yet been finally decided.

9.   Respondents also make several contentions relating to particular causes of action.   They assert that plaintiff cannot recover for intentional infliction of emotional distress because, as a matter of law, respondents' conduct was not outrageous.   The outrageousness of the conduct alleged—the deliberate withholding by Dr. Gordon of material facts relevant to his lack of good health and appellant's professed desire to avoid exposure to AIDS, and the failure of Drs. Knox and Blanchard to personally notify appellant of the remote possibility of AIDS exposure before airing their frightening concerns about Dr. Gordon's continued surgical practice over the public airways—falls safely within the ambit of contested fact issues appropriately resolved at a trial.   Respondents also argue that dismissal of the intentional misrepresentation cause of action was proper because damages for emotional distress alone are not recoverable in such actions.   Respondents apparently do not consider appellant's loss of the money paid to respondents for the surgery to qualify as financial damages.   In any event, since respondents did not move for summary adjudication of the intentional misrepresentation and intentional infliction of emotional distress causes of action in the trial court, it is unnecessary to address the points at this juncture.

10.   The Supreme Court recently granted review in two cases involving fear of disease resulting from exposure to toxic substances.   In Akins v. Sacramento Mun. Utility Dist. (1992) 11 Cal.Rptr.2d 329, 834 P.2d 1147, plaintiffs claimed they were exposed to radiation discharged by a nuclear power plant, and feared developing cancer.   Summary judgment was granted and affirmed by the Court of Appeal on the ground that the undisputed facts showed that plaintiffs were not exposed to harmful levels of radiation, according to the regulatory standards of the Nuclear Regulatory Commission and Environmental Protection Agency.   In Potter v. Firestone Tire & Rubber Co. (1991) 278 Cal.Rptr. 836, 806 P.2d 308 plaintiffs sued a tire company that dumped toxic chemicals at a prohibited waste disposal site, contaminating nearby residents' water supply.   The trial court entered judgment in plaintiffs' favor for negligent infliction of emotional distress resulting from the fear of developing cancer from drinking water contaminated with carcinogens.   The Court of Appeal reversed an order after judgment directing defendants to pay costs and interest and reversed an award of damages for medical monitoring costs.   The Supreme Court granted review, and has requested briefing on a number of questions, including:  whether plaintiffs suffered any physical injury for which parasitic damages for emotional distress may be recovered;  whether in the absence of physical injury a plaintiff may recover damages for emotional distress for the fear of cancer suffered upon learning that the plaintiff has ingested a toxic chemical;  and, if so, whether a plaintiff must prove that his or her emotional distress was caused by knowledge that the likelihood of future illness resulting from exposure is substantial.   We recognize that the outcome of Akins and Potter may ultimately affect appellant's burden of proof at a subsequent trial.

FUKUTO, Associate Justice.

BOREN, P.J., and NOTT, J., concur.