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Rustvold v. Taylor11/22/2000
f is the duty to prevent the exposure of a patient in a hospital environment to the emotional harm arising from the perception of a possible exposure to HIV or Hepatitis B. That duty arises within the ordinary knowledge that a potential exposure to HIV or Hepatitis B causes emotional trauma to any person in plaintiff's circumstances, at least until the testing period is complete. There is no need for a medical expert to testify to such a duty. That duty is as obvious as the duty to sterilize surgical instruments was in King. Plaintiff's resulting emotional harm from the breach of defendants' duty does not depend on whether the diseases are ultimately contracted or not. Rather, the emotional harm occurs while the patient awaits the outcome of the tests. No jury requires the assistance of an expert witness to understand the depth of anxiety that exists during that time after a patient has been notified that a syringe used for another patient has also been used in his or her intravenous treatment. In sum, the common law exists for these very kind of circumstances. It is an ordinary experience to suffer anxiety while awaiting the outcome of medical tests for any serious medical problem. Here, plaintiff's anguish was caused by defendants' negligence. Her anguish was as predictable as the anguish suffered by the plaintiff in Curtis who underwent an MRI. Under the circumstances, this court should have no difficulty inferring from plaintiff's evidence that there is a recognized concern within the medical community about preventing such harm. It follows as a matter of law that a duty exists to prevent the negligent conduct that would produce such harm.
To reiterate the governing legal principles: in the absence of any pertinent legislation, it is for the courts "to define what constitutes legally cognizable harm in a tort case." Stevens, 316 Or at 229. The "harm claimed" in this case involves psychological harm, including mental anguish, loss of sleep, loss of enjoyment of life, fear, anxiety, fatigue and depression. " he fact that the harm is psychological rather than physical is not a bar to liability." Curtis, 327 Or at 15. The admonition in Curtis that no general duty of care exists to protect from emotional harm is inapplicable to these facts. Defendant's liability is not predicated on a principle of general foreseeability as the majority suggests; rather, the conclusion is that a standard of care to prevent emotional harm exists under the circumstances of this case because of the gravamen of plaintiff's claim. Even in the absence of expert medical evidence, it is the peculiar nature of the facts in this case, as understood by ordinary people, that gives rise to a specific duty to protect against the kind of harm suffered by plaintiff. It follows that "where the standard of care * * * recognizes the possibility of adverse psychological reactions or consequences as a medical concern and dictates that certain precautions be taken to avoid or minimize it, the law will not insulate persons in that profession from liability if they fail in their duties, thereby causing the contemplated harm." Curtis, 327 Or at 15-16. (Emphasis added). Accordingly, I would hold that defendants are not insulated from liability for the psychological harm suffered by plaintiff as a result of their negligence.
Although I concur in the majority's decision regarding plaintiff's malpractice claim insofar as her claim of physical injuries is concerned, I dissent from its ruling dismissing her emotional harm claims.
De Muniz, Armstrong and Wollheim, Judges, join in this dissent.
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