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Faya v. Almaraz3/9/1993
able to say, as a matter of law, that Dr. Almaraz owed no duty to the appellants, either to refrain from performing the surgery or to warn them of his condition. This is so even though the medical literature indicates
that, with proper barrier techniques, the risk of HIV transmission during surgery is extremely low, for legal scholars have long agreed that the seriousness of potential harm, as well as its probability, contributes to a duty to prevent it. Restatement, Second, Torts, § 293(c), comment c; Prosser and Keeton, Torts, § 31 (5th ed. 1984); Moran, supra, 273 Md. at 543 ("whether unreasonable risk exists in a given situation depends on balancing the probability and seriousness of harm, if care is not exercised, against the costs of taking appropriate cautions."). While it may be unlikely that an infected doctor will transmit the AIDS virus to a patient during surgery, the patient will almost surely die if the virus is transmitted.
The House of Delegates of the American Medical Association (AMA) has adopted the following policy statement on HIV-infected physicians:
"It should be noted that transmission of HIV from an infected physician to a patient has not yet been reported, but it is a theoretical possibility during invasive procedures. It is longstanding AMA policy that when the scientific basis for patient protection policy decisions are unclear, the physician must err on the side of protecting patients.
"That being the case, the following recommendations should be followed in the management of an HIV-infected health care worker:
"HIV-infected physicians should disclose their HIV seropositivity to a public health officer or a local review committee, and should refrain from doing procedures that pose a significant risk of HIV transmission or perform these procedures only with the consent of the patient and the permission of a local review committee. This committee will determine the activities the physician can continue to perform."
AMA "Digest of HIV/AIDS Policy," September 14, 1992. Similarly, the AMA's Code of Medical Ethics provides:
"A physician who knows that he or she has an infectious disease, which if contracted by the patient would pose a
significant risk to the patient, should not engage in any activity that creates a risk of transmission of that disease to the patient. The precautions taken to prevent the transmission of a contagious disease to a patient should be appropriate to the seriousness of the disease and must be particularly stringent in the case of a disease that is potentially fatal.
"A physician who knows that he or she is seropositive should not engage in any activity that creates a risk of transmission of the disease to others. A physician who has HIV disease or who is seropositive should consult colleagues as to which activities the physician can pursue without creating a risk to patients."
AMA Council on Ethical and Judicial Affairs, "Current Opinions, Code of Medical Ethics," 1992.
Thus, in evaluating the well-pleaded allegations of the complaints with respect to the duty component of the tort of negligence, we cannot conclude that they are legally insufficient to survive the appellees' motions to dismiss; in other words, we cannot say as a matter of law that no duty was imposed upon Dr. Almaraz to warn the appellants of his infected condition or refrain from operating upon them.
The appellants pleaded that as a result of Dr. Almaraz's breach of duty, they were put in fear of having contracted HIV and thereby suffered the derivative consequences of that fear, which were manifested by emot
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