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Faya v. Almaraz3/9/1993
from Faya the following March. On November 14, 1989, again at Hopkins, Almaraz surgically excised a benign lump from the breast of Perry Mahoney Rossi. The therapeutic outcome of these operations is not in dispute.
On October 27, 1989, Almaraz was first diagnosed as suffering from cytomegalovirus retinitis, the eye infection signaling full-blown AIDS. That diagnosis was confirmed by a second ophthalmologist on November 17, 1989. Thus, as well as knowing his HIV-positive status throughout the period in question, Almaraz knew that he had AIDS prior to the Rossi operation.
Almaraz gave up his practice of medicine on March 1, 1990. He terminated his association with Hopkins in June of that year. He died of AIDS on November 16, 1990. Faya and Rossi learned of their physician's illness for the first time from a local newspaper on or about December 6, 1990, well over a year after Rossi's operation and twenty
months after Faya's last contact with Almaraz. Both Faya and Rossi immediately underwent blood tests for the AIDS virus, which came back negative for both. Nevertheless, by December 11 Sonja Faya, Perry Mahoney Rossi, and her husband, Dennis T. Rossi (appellants), filed suit against Almaraz's estate, his Maryland professional association business entity, and Hopkins (appellees) for compensatory and punitive damages.
III
In their separate actions filed in the Circuit Court for Baltimore City, the appellants, in a multiplicity of counts, alleged various wrongful acts by Dr. Almaraz and Hopkins. Common to both complaints were counts alleging negligence, negligent failure to obtain the patients' informed consent, fraud, and intentional infliction of emotional distress. To these Faya added counts for negligent misrepresentation and breach of contract. The Rossi complaint, as amended, contained further counts alleging loss of consortium, breach of fiduciary duty, and battery.
The gist of the complaints was that Almaraz acted wrongfully in operating on the two women without first telling them that he was HIV-positive (and, later, ill from AIDS proper), and that Hopkins was culpable for permitting him to do so. More specifically, appellants alleged that at the time of the consultations and surgeries, Almaraz, knowing of his illness, failed to inform them of any risk of contracting HIV that might result from his performance of the surgical procedures. They alluded to the possibility of a puncture or laceration through the protective garments worn by the surgeon and a consequent commingling of his blood with their blood. They claimed that by undergoing their operations in ignorance of Almaraz's illness, they were
exposed to a hazard they would otherwise have avoided by withholding their consent, namely, a risk of AIDS attendant upon invasive surgery.
Both Faya and Rossi alleged that the hospital failed independently to take steps, such as the suspension of Dr. Almaraz's surgical privileges, to prevent him from operating on unsuspecting patients, or to adequately obtain informed consent from such patients. They further imputed to Hopkins vicarious liability for Almaraz's conduct, alleging that the physician acted as the hospital's agent or employee.
Appellants averred in their complaints that as a proximate result of the operations and their subsequent discovery of the alleged wrongdoing by Almaraz and Hopkins, they incurred injuries in the form of exposure to HIV and risk of AIDS, physical injury and financial cost resulting from surveillance blood testing for HIV antibodies, pain, fear, anxiety, grief, nervous shock, severe emotional distress, headache and sleeplessness.
Appellees filed mo
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