In AIDS-phobia claim, claimant did not demonstrate facts warranting a finding of "special circumstances" that would allow claim to go forward despite absence of proof that blood to which she was exposed was actually HIV positive.
|Claimant(s):||SUSAN SIEGRIST and WILLIAM SIEGRIST|
|Claimant short name:||SIEGRIST|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DUFFY, DUFFY & BURDO, Esqs.
By: Paul Majkowski, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Mary Y. J. Kim, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 23, 2007|
|Appellate results:||Affirmed, 55 AD3d 717 (2d Dept 2008)|
|See also (multicaptioned case)|
Claimant Susan Siegrist filed this claim seeking compensation for emotional injuries allegedly suffered as a result of possibly being exposed to the blood of another patient at defendant's Stony Brook University Hospital.(1) Claimant moves for partial summary judgment on the issue of liability. Defendant cross-moves for summary judgment dismissing the claim in its entirety or, in the alternative, for partial summary judgment limiting damages to the six-month period following the alleged exposure. By decision and order dated March 7, 2007, this Court held in abeyance its decision on the parties' motions pending further submissions by the parties on a discrete legal issue, namely whether "defendant's actions in failing to test the blood in the ventilator for HIV [Human Immunodeficiency Virus] support a finding of a 'special circumstance'" that would excuse claimant from having to prove that she was actually or probably exposed to HIV (Siegrist v State of New York, UID # 2007-038-506, Claim No. 109964, Motion Nos. M-72342, CM-72640, DeBow, J. [March 7, 2007]). For the reasons set forth below, the Court will grant defendant's cross motion for summary judgment dismissing the claim.
The salient facts are undisputed. On August 18, 2003, claimant underwent surgery under general anesthesia at defendant's Stony Brook University Hospital. The surgery was performed by Dr. Lauri Budnick. On August 22, 2003, Dr. Budnick informed claimant that subsequent to her surgery, it was discovered that the blood of another patient was present in the "expiratory limb" of the ventilator that had been used during claimant's surgery. The other patient that Stony Brook University Hospital officials suspected was the source of that blood was in a coma and subsequently died, and thus he could not consent to a blood test for the presence of HIV. Neither that patient nor the blood that was found in the ventilator were tested for HIV, and so it was never determined whether the "source" blood was HIV-negative or positive. Claimant was advised that it was possible that she had been exposed to HIV and hepatitis, and following a consultation with Dr. Budnick, claimant underwent periodic testing for HIV every three months for one year, achieving negative results each time. Claimant seeks damages because defendant's actions allegedly caused her to suffer emotional distress due to a fear that she would develop Acquired Immune Deficiency Syndrome (AIDS).(2)
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and 'it should only be employed when there is no doubt as to the absence of triable issues'" (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 ). On a motion for summary judgment, the court's function is issue finding, not issue determination (see Matter of Suffolk County Department of Social Services v James M., 83 NY2d 178, 182 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 ).
To prevail on an AIDS-phobia claim, a claimant whose HIV tests have been negative must prove "actual exposure" to HIV by establishing "(a) the actual or probable presence of HIV when the alleged transmission occurred, and (b) that there was some injury, impact, or other plausible mode of transmission whereby HIV contamination could with reasonable likelihood enter the plaintiff's bloodstream" (Montalbano v Tri-Mac Enters. of Port Jefferson, 236 AD2d 374, 375 [2d Dept 1997], citing Brown v New York City Health & Hosps. Corp., 225 AD2d 36, 45 [2d Dept 1996]; see Schott v St. Charles Hosp., 250 AD2d 587, 588 [2d Dept 1998]). Requiring this two-pronged proof of actual exposure serves to "insure that there is a genuine basis for the plaintiff's fear of developing the disease, that the fear is not based on public misconceptions about the disease, and that such claims are treated consistently" (Brown v New York City Health & Hosps. Corp., supra at 45), and to limit causes of action to those cases in which the likelihood of HIV contamination was not so remote that the claimed fear of AIDS is too irrational and speculative to be actionable (see Schott v St. Charles Hosp., supra; Blair v Elwood Union Free Public Schools, 238 AD2d 295 [2d Dept 1997]).
This case is one of many in which the unavailability of the bodily fluid to which the plaintiff/claimant was allegedly exposed precluded the plaintiff/claimant from demonstrating that HIV was actually present at the time of the alleged exposure (see Kelly v Our Lady of Mercy Med. Ctr., 279 AD2d 290 [1st Dept 2001], lv denied 96 NY2d 719  [lancet unintentionally discarded]; Fosby v Albany Mem. Hosp., 252 AD2d 606 [3d Dept 1998] [defendant refused to provide plaintiff with report including information about use of needle]; Schott v St. Charles Hosp., supra [defendant failed to test needle]; Montalbano v Tri-Mac Enters. of Port Jefferson, supra [blood was on food that was consumed]; Brown v New York City Health & Hosps. Corp., supra [stylet discarded after removal from plaintiff's thumb]; Harris v State of New York, 187 Misc 2d 512 [Ct Cl 2001] [needle discarded]). In this case, the lack of HIV testing of the suspected source patient, and the absence of proof of testing upon the blood that was found in the ventilator machine precludes claimant from demonstrating that the blood to which she was allegedly exposed was HIV-positive. Claimant's submissions on the motions before the Court are wholly devoid of facts that indicate that the blood that was found in the ventilator machine was actually or probably HIV-positive. Thus, her claim is "therefore by definition not genuine, and [her] alleged fears are too remote, or speculative to sustain the [claim]" (Blair v Elwood Union Free Public Schools, supra at 296; cf. Kelly v Our Lady of Mercy Med. Ctr., supra [plaintiff's evidence that 25% of hospital patients in Bronx hospitals were HIV-positive insufficient to raise an issue of fact on actual exposure, while defendant's records showed that no AIDS or HIV-positive patients had been recently treated in proximity to plaintiff]; Schott v St. Charles Hosp., supra [needle was of a size not used for blood transfers and it appeared the needle had been through the wash]; compare Brown v New York City Health & Hosps. Corp., supra at 48 [despite unavailability of needle, "there was other evidence from which a jury could potentially conclude that the needle was contaminated"]).
Recognizing this absence of affirmative proof that the blood in the ventilator was HIV-positive, claimant invokes a "special circumstance" exception that has been applied to excuse the requirement of proof that the bodily fluid in the alleged transmission was actually or probably HIV-positive (see Fosby v Albany Mem. Hosp., supra).(3) Claimant initially argues that a "special circumstance" must be found here based upon "[t]he facts that (i) the source of transmission was un-testable based on another patient's privacy rights, (ii) defendant's employees themselves recommended that claimant undergo HIV testing, and (iii) claimant followed this advice and underwent such testing" (Majkowski Affirmation, Sept. 28, 2006, ¶ 28). Claimant further argues in a later submission that "special circumstances" exist in this case because: (1) the reasons for the lack of HIV testing of the source of the blood were outside of claimant's control;(4) (2) defendant's failure to seek a court order testing the blood amounted to an improper delay and thus a "special circumstance"; and (3) the lack of information about the source's HIV status justifies her fear (Majkowski Affirmation, Apr. 3, 2007). Moreover, claimant contends that defendant's failure to submit evidence regarding its decision to not seek a court order creates a triable issue of fact regarding the existence of a "special circumstance" and thus, defendant "has not met its burden [in moving] for summary judgment and its [cross] motion should be denied" (Majkowski Affirmation, Apr. 3, 2007, ¶¶ 12 and 13).
In Fosby, the Third Department held that "special circumstances" might be found "given plaintiff's exposure to a scientifically accepted means of transmission of HIV together with defendant's unreasonable withholding of information regarding the prior use of the needle and whether the needle had been, or could have been, tested for the presence of blood or HIV antibodies" (Fosby v Albany Mem. Hosp., supra at 608). Such affirmative misconduct may permit an inference that a plaintiff was probably exposed to HIV-positive bodily fluids because the defendant's "unreasonable concealment of information about the presence of HIV . . . guarantee[s] the legitimacy of the claim" (Harris v State of New York, supra at 516). To date, Fosby is the only reported decision in this State where such "special circumstances" have been found, and it has been suggested that "special circumstances" arise only when a defendant intentionally or unreasonably interferes with the injured party's ability to prove the actual presence of HIV (see id.; cf. Kelly v Our Lady of Mercy Med. Ctr., supra).
The facts upon which claimant relies in her initial submission - the unavailability of the potential exposure source for HIV testing, along with advice by defendant to undergo HIV testing that claimant followed - would require a significant expansion of the "special circumstances" exception, from situations in which a defendant affirmatively, intentionally or unreasonably interfered with a plaintiff/ claimant's ability to prove the actual presence of HIV to all situations in which, through the fault of no party, the instrument of potential exposure is unavailable or cannot be tested. This would allow the exception to swallow the rule requiring proof of "actual exposure," and would ultimately create de facto strict liability in those cases where the blood or bodily fluid was not tested and plaintiff/claimant was advised by defendant to undergo HIV testing. To hold as claimant would have this Court hold would not only be an unprecedented and broad application of the "special circumstances" exception, but would be contrary to public policy because it would serve as a disincentive to health care providers to proactively protect potentially exposed persons, a course of conduct often seen in cases where the source blood is unavailable for testing (see Ornstein v New York City Health & Hosps. Corp., 27 AD3d 180 [1st Dept 2006] [claimant given antiviral medication for a brief period and tested for HIV every three months for one year]; Fosby v Albany Mem. Hosp., supra; Blair v Elwood Union Free Public Schools, supra; Brown v New York City Health & Hosps. Corp., supra [plaintiff was advised to take AZT]; Harris v State of New York, supra). Put another way, the unavailability of the source of transmission or the inability to test the blood for HIV, coupled with defendant's advice or assistance in obtaining HIV testing or prophylactic treatment, are not circumstances, without more, that may be considered "special" such that application of an exception to the requirement that the genuineness of the claim be demonstrated by proof of actual exposure is warranted. Claimant's supplemental submission, addressed specifically to whether defendant's failure to test the source blood constitutes a "special circumstance," presents no evidence regarding defendant's motivation for disposing of the blood that was in the ventilator (i.e., whether defendant disposed of the blood to prevent the blood from being tested), nor evidence that defendant tested the blood and withheld the test results from claimant.(5) Thus, claimant has tendered no evidence in support of her motion that defendant engaged in affirmative, intentional or unreasonable conduct of the type heretofore considered to constitute a "special circumstance" (see Fosby v Albany Mem. Hosp., supra; Harris v State of New York, supra at 515).
Claimant's subsequent argument that a triable issue of fact exists because defendant's failure to seek a court order to test the blood of the source patient should constitute a "special circumstance" is unavailing. Defendant's mere failure to seek a court order, standing alone, cannot be characterized as a "special circumstance," especially because claimant has not demonstrated that defendant was required to seek such an order. Nor did claimant demonstrate that defendant interfered with her ability to seek a court order. Further, assuming arguendo that defendant had an obligation to seek such a court order, claimant has not offered any evidence that defendant made an affirmative decision to not seek a court order, that defendant denied a request by claimant to seek a court order, or that defendant otherwise acted in a manner that affirmatively, intentionally or unreasonably interfered with claimant's ability to ascertain the HIV-status of the source blood. Moreover, although not necessarily dispositive, claimant has not presented a compelling argument why she did not or could not have sought a court order following her discussion with defendant's agents about the need for a court order. Thus, where she, too, may have had the opportunity to seek a court order compelling testing of the source patient's blood, the Court would be further disinclined to find a "special circumstance" due to the mere fact that defendant did not do so.
Thus, notwithstanding defendant's clearly negligent and irresponsible actions in potentially exposing claimant to the blood of another patient, and despite the fear that claimant may have experienced as a result, the Court is constrained to rule that defendant is entitled to judgment as a matter of law because claimant: (1) has not met her prima facie burden of demonstrating her entitlement to judgment as a matter of law; and (2) has failed to raise a triable issue of fact in opposition to defendant's cross motion on the issues of actual or probable presence of the HIV virus or "special circumstances" that would excuse proof of the actual or probable presence of HIV in the blood to which she was possibly exposed.
Briefly, in light of claimant's failure to raise a triable issue of fact regarding actual exposure to HIV, the Court need not address the parties' arguments regarding the second prong of the actual exposure test, to wit, whether the ventilator was a plausible mode of transmission of HIV (see Montalbano v Tri-Mac Enters. of Port Jefferson, supra, 236 AD2d at 375). Further, claimant's argument that defendant's negligence in allowing another patient's blood to remain in the ventilator is established by the doctrine of res ipsa loquitur does not sustain her claim. Although defendant does not dispute its negligence in this regard, and even assuming the viability of claimant's res ipsa loquitur argument, the claim cannot survive defendant's motion for summary judgment without proof that the blood to which claimant was allegedly exposed was actually or probably HIV-positive.
Accordingly, claimants' motion for partial summary judgment is DENIED and defendant's cross motion for summary judgment is GRANTED and Claim No.109964 is hereby DISMISSED.
April 23, 2007
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claimants' Notice of Motion, dated September 28, 2006;
(2) Affirmation of Paul V. Majkowski, Esq., dated September 28, 2006, with exhibits A-G,
including the Affidavit of Joseph A. Stirt, M.D., sworn to September 27, 2006;
(3) Defendant's Notice of Cross-Motion, dated December 5, 2006;
(4) Affirmation of Mary Y.J. Kim, AAG, dated December 5, 2006;
(5) Affidavit of William H. Greene, M.D., sworn to December 4, 2006, with exhibits A-B;
(6) Affirmation in Reply and in Opposition of Paul V. Majkowski, Esq., dated December 18,
(7) Reply Affirmation of Mary Y.J. Kim, AAG, dated December 21, 2006;
(8) Supplemental Affirmation of Paul V. Majkowski, Esq., dated April 3, 2007, with
(9) Supplemental Affirmation of Mary Y.J. Kim, AAG, dated April 9, 2007.
1. Claimant William Siegrist, Susan Siegrist's husband, sues derivatively. Unless otherwise indicated, references in this decision to "claimant" shall refer to Susan Siegrist.
2. A cause of action for emotional distress caused by another's negligence in possibly exposing plaintiff/claimant to the HIV virus has been commonly referred to as an "AIDS phobia" claim (see generally Brown v New York City Health & Hosps. Corp., 225 AD2d 36 [2d Dept 1996]; see also Ornstein v New York City Health & Hosps. Corp., 27 AD3d 180 [1st Dept 2006]; Fosby v Albany Mem. Hosp., 252 AD2d 606 [3d Dept 1998]; Harris v State of New York, 187 Misc 2d 512 [Ct Cl 2001]).
3. To the extent that claimant is contending that the presence of "special circumstances" supplants both prongs of the objective test, it is noted that the "special circumstance" referred to in Fosby v Albany Mem. Hosp., (supra at 608) would have excused plaintiff in that case only from demonstrating the presence of blood or other fluid that is HIV-positive (see Ornstein v New York City Health & Hosps. Corp., supra at 186); plaintiff in Fosby demonstrated that she had been exposed to a medical needle, a plausible means of transmission of HIV.Further, claimant clearly acknowledges that the "actual exposure" test has been established to ensure the genuineness of AIDS-phobia claims (see Brown v New York City Health & Hosps. Corp., supra at 44-48). Yet she implicitly invites the Court to wholly ignore that test because the reasonableness and legitimacy of claimant's fears are demonstrated by the fact that defendant advised her that she might have been exposed to HIV, that there was no way to definitively rule out that possible exposure, that defendant's physicians believed that undergoing HIV testing for one year was a reasonable course of action, and that claimant was given prescriptions for such testing and she actually underwent that testing. Application of a subjective "reasonableness" standard has already been rejected in this state in favor of the objective test requiring a demonstration of actual exposure to HIV (see Fosby v Albany Mem. Hosp., supra at 607).
4. This argument is in essence a restatement of an argument made by claimant in her initial motion papers, i.e., that the source patient was unable to consent to HIV testing because he was comatose and subsequently expired.
5. To the contrary, the record on the parties' motions shows that defendant acted responsibly after learning that claimant had been potentially exposed to another patient's blood by promptly notifying claimant and providing her with assistance in dealing with the potential exposure.