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Faya v. Almaraz3/9/1993
Opinion BY MURPHY, C.J.
These companion cases present the important question whether a surgeon infected with the AIDS virus has a legal duty to inform patients of that condition before operating upon them and, failing that, whether a patient's fear of having contracted the AIDS virus from the infected surgeon constitutes a legally compensable injury where the patient has not shown HIV-positive status.
I
Central to an understanding of these cases are the nature of the acquired immune deficiency syndrome (AIDS) and its
relationship to the human immunodeficiency virus (HIV or "the AIDS virus"). First isolated and identified by scientists in 1983, HIV is a retrovirus that attacks the human immune system. The virus invades host cells, notably certain lymphocytes, replicates itself, weakens the immune system, and ultimately destroys the body's capacity to ward off disease.
HIV's presence is detected by a laboratory blood test for antibodies to the virus. The virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally. HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or birth. See Jonathan N. Weber & Robin A. Weiss, HIV Infection: The Cellular Picture, Scientific American, October 1988, at 100-109; William A. Haseltine & Flossie Wong-Staal, The Molecular Biology of the AIDS Virus, Scientific American, October 1988, at 52-62; Jay A. Levy, Human Immunodeficiency Viruses and the Pathogenesis of AIDS, 261 J.Am.Med.Ass'n 2997, 2998-3001 (1989); Thomas R. O'Brien et al., Testing for Antibodies to Human Immunodeficiency Virus Type 2 in the United States, Morbidity and Mortality Weekly Report, July 17, 1992, Vol. 41, No. RR-12; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:05 - 1:07, 1:24 - 1:34 (1991).
AIDS, in turn, is the condition that eventually results from an immune system gravely impaired by HIV. Medical studies have indicated that most people who carry the virus will progress to AIDS. AIDS patients by definition are profoundly immunocompromised; that is, they are prone to any number of diseases and opportunistic infections that a person with a healthy immune system might otherwise resist. AIDS is thus the acute clinical phase of immune dysfunction. Among the prevalent "AIDS-defining" diagnoses are Kaposi's sarcoma, a rare cancer; pneumocystis {PA}
Page 440} carinii pneumonia; cytomegalovirus infections of the eye and gastrointestinal tract; mycobacterium aviumintracellulare, a rare type of tuberculosis; and severe, prolonged yeast infections or herpes. See Institute of Medicine/National Academy of Science, Confronting AIDS: Directions for Public Health, Health Care and Research (1986) and Confronting AIDS: Update 1988 (1988); Robert R. Redfield & Donald S. Burke, HIV Infection: The Clinical Picture, Scientific American, October 1988, at 90-98; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:10 - 1:23 (1991). AIDS is invariably fatal.
II
Dr. Rudolf Almaraz, an oncological surgeon specializing in breast cancer with operative privileges at the Johns Hopkins Hospital (Hopkins) in Baltimore, knew himself to be HIV-positive, i.e. a carrier of the HIV virus, since 1986. On October 7, 1988, Almaraz performed a partial mastectomy and axiliary dissection on Sonja Faya at Hopkins. He removed an axillary hematoma
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