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Faya v. Almaraz3/9/1993
ional and mental distress, headaches, sleeplessness, and, in addition, the pain and expense associated with repeated blood tests. We turn now to the question of whether these are legally compensable injuries where the appellants have not alleged in their complaints an actual transmission of the HIV virus into their bodies during the surgical procedures. Instead, appellants allege only that because of Dr. Almaraz's HIV positive status, he exposed them to the virus during the surgery. In this regard, the complaints do not allege that subsequent blood tests have revealed that the appellants have, in fact, shown HIV positive status.
C
Courts have differed on the question of recovery of damages for the fear of AIDS and attendant physical consequences absent an HIV-positive test. In Burk v. Sage Products, Inc., 747 F.Supp. 285 (E.D.Pa. 1990), the court rejected a paramedic's claim based on fear of contracting AIDS after he suffered a needle-stick from a discarded syringe. The paramedic could not demonstrate that the needle had been used on an AIDS patient, and he himself had tested HIV-negative no fewer than five times during the thirteen months after the incident. Id. at 286-287. The court held first that, in the absence of any allegation that the syringe harbored HIV, the plaintiff had failed to establish an exposure to the AIDS virus sufficient to support a cause of action. Id. at 287. Moreover, the court found no compensable injury : "Plaintiff here has alleged no injury which arises out of his exposure to the AIDS virus. Rather, plaintiff's only injuries stem from his fear that he has been exposed to the disease." Id. at 288. The court deemed such fear to be unfounded, observing that the five negative tests indicated to a high degree of
medical certainty that the paramedic would not develop AIDS from his needle-stick. Id.
Other courts have concurred with Burk in denying recovery where the plaintiff can demonstrate neither a channel of exposure to the AIDS virus nor demonstrable injury in the form of an HIV-positive test. See Funeral Services by Gregory, Inc., v. Bluefield Community Hospital, 413 S.E. 2d 79 (W.Va. 1991) (no recovery for a mortician who had embalmed an AIDS-infected corpse, where he had worn proper protective gear and had not alleged any avenue of exposure); Hare v. State, 570 N.Y.S. 2d 125 (A.D. 2 Dept. 1991) (recovery denied for hospital employee bitten by unrestrained inmate, where employee failed to prove that inmate was infected and where plaintiff had tested HIV-negative); Doe v. Doe, 519 N.Y.S. 2d 595 (Sup. 1987) (recovery denied for "AIDS-phobia" based on husband's alleged homosexual affair, wife having failed to allege that husband was infected with the disease and having failed to allege that she had contracted HIV).
On the other hand, some courts have reasoned differently. In Johnson v. W. Va. University Hospitals, 413 S.E.2d 889 (W.Va. 1991), the court affirmed a judgment for a police officer attacked in a hospital by an AIDS-infected patient who had first bitten himself on the arm, thereby drawing his own infected blood into his mouth, and then bitten the officer. There, the officer sued the hospital, claiming that it negligently failed to advise him that the patient had AIDS, and that as a result of his exposure to AIDS, the officer had suffered from emotional distress. Although regularly tested for the HIV virus after having been bitten by the patient, the tests were negative for the disease. The officer's treating psychologist testified that the officer suffered from post traumatic stress disorder and was unable to sleep. The court noted that, absent physical injury, there would be no recovery for emotional distress. It held,
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