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Faya v. Almaraz3/9/1993
est positive for the virus (though not manifest AIDS) within six months of acquiring it. Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. S-7. See also C. Robert Horsburgh et al., Duration of Human Immunodeficiency Virus Infection before Detection of Antibody, The Lancet, September 16, 1989, at 637-40.
These characteristics of HIV and AIDS, which the lower court also recognized, are proper objects of judicial notice.
We, therefore, reject the appellants' threshold contention that the court below, in dismissing their complaints, erroneously adopted statistics and medical information that were properly the subject of expert testimony, open to challenge at trial. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1986) ("Courts normally should defer to the reasonable medical judgments of public health officials."); Doe v. Borough of Barrington, 729 F.Supp. 376, 381 (D.N.J. 1990) ("This court must take medical science as it finds it; its decision may not be based on speculation of what the state of medical science may be in the future."). These facts derive from reputable scientific journals and institutions and are well-accepted within the medical community.
B
While the appellants allege many counts of misconduct by the appellees, the core of their complaints is that Dr. Almaraz was negligent in failing to disclose his HIV-positive status before operating on Faya and Rossi. Appellants assert that a physician's duty of care must encompass disclosure that an operating surgeon's HIV-positive status poses the risk, however minimal, of transmission of the AIDS virus during surgery. Appellants maintain that, having properly pleaded this issue, the trial court erred in not
allowing a jury to evaluate Almaraz's conduct and its consequences. We agree.
To state a cause of action in negligence, a plaintiff must allege that the defendant had a duty of care which he breached, and that the breach proximately caused legally cognizable injury . Pennwalt Corp. v. Nasios, 314 Md. 433, 453, 550 A.2d 1155 (1988); Jacques v. First National Bank of Maryland, 307 Md. 527, 531, 515 A.2d 756 (1986); Cramer v. Housing Opportunity Comm'n, 304 Md. 705, 501 A.2d 35 (1985).
The concept of legal duty, we observed years ago, emanates from "the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others." Moran v. Faberge, 273 Md. 538, 543, 332 A.2d 11 (1975). We have explored the question of duty in the very context of infectious disease which the instant case represents. In B.N. v. K.K., supra, a nurse alleged that a doctor with whom she had been intimate was negligent in failing to inform her of his genital herpes. We began with the premise that "an important factor used to determine the existence of a duty is foreseeability." 312 Md. at 141. We then observed that "one who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact." Id. at 142. Because of this foreseeability of transmission, we held that the doctor had a legal duty either to refrain from sexual contact with others or to inform his sexual partners of his disease. Id. at 143.
The same principle applies in the instant case. Under the allegations of the appellants' complaints, taken as true, it was foreseeable that Dr. Almaraz might transmit the AIDS virus to his patients during invasive surgery. Thus, we are un
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