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Home My WebLink About95-03482 " ! I, I' { , , I' . I ~ I', " " " " " " ,.~ ~ J ~ ~ ~ ~ ~ , I " ~ I ' , , , " , , - g" .., a' ~ ." ~ 7- .- ~ a ? c [ 8 ,.. 3 11 ~ ~ ~ 0- VI .. '" III I it ~ ~ '" n :!I: .... :!1 ~ Ol ; ~ :II: N [ r:r ... (0 ~ < i-' n VI ., n i-' .... i-' ~ ;;1 . < III 1:1 !;; :0<' .... :l '" i-' 0. ~ ::l ." "l ~ ~ " 0 " n '" " " r 1:1 3 3 ~ '" '" :0 :0 I 0 c I I , ;! ;! .~ C" .. C. . '. :0===:. ;:;.:=;.;,-;.:; _ .~ -_..--.-..- .-.---. ~!<<>. 1 2. 4 5 '/ B - II l2 . I <J 20 - 30 32 - '1'1 40 - 46 47 - 4B AllllllIN Iho I(oollld. I1l1d l'I""oo,IiIl~\ ollrllllod 111 Iho CIIIIII Ill' ('1I1111111111 \'lclI' ill IIl1d fill Iho 1;1111111\' III _u._.___... cLUnbC/.-_li!n<! III Iho ('lIl11l11l1l1WOllllh IIf l'ol1l1.yIVl.nlll Cdse No. 205 Hbg. I'j'lh III Nil. _._.~!~!.~J4!l2 Civ Jl ......1 otln, I~ . _, _,._. " ClIl1l,lIl1odlho followinK: ('()flY OF __l\llDl,:i!rml!:\:..__. .._ . 1l()(,KF.T ENTI(Y "ARBARA Mlt.I.IKAN vs. HOI.Y 51'1 R I'r 1I0SPI1'At. AND GRANDVIEW SURGERY CENTER, INC. JWle 28, 1995, Praecipe for Writ. of SUJllnons, and Writ of Sl.VT11lOns, issued. .July 14, 1995, Sheriff's Return ot' Service, filed. Aug. 'f, 1995, Entry of Appearallce, filed. Plellse enter our appearance on bellalf of tile Defendant, Holy Spirit Ilospi tal. Ely: Craig ^. Stone, Esq. Sept. 12, 1995. Praecipe for !lule to File Cllllplllint, and flule to File Complaint, entered. Nov. 27, 1995, Canplaint, filecl. Dec. 20. 1995, Preliminary Objections of Defendant Holy Spirit Hospital to the Cmlplaint., filed. Feb. 9, 1996, Opinion and Order of Court, filed. In Re: Preliminary Objec- t ions to Cexnplaint fIND tI.'aiI, this 9th day of February, 1996, IT IS ORDERED: (1) Tile demurrer to plaintiff's cause of action for negligent inflictio of arotional distress, IS GRANTED. (2) Plaintiff shall file an amP.nded canplaint setting forth the costs associated with her cause of action for negl igent perfonnance of an under- tak ing to render services. By the Court, Edgar B. Bayley, J. March 8, 1996, Notice of Appeal and Order for Transcript., filed. Notice is hereby given that Barbara Mi I Li.kan, PIllintiff atxlve-nll1led, hereby appeals to the Superior Court of renn:'1ylvania fnxn the Order of Court dated February 9, 1996. This order has been entero:l in the docket liS ev idenced by the attached copy of the docket ent ry. By: D.-lrre II C. Detllleff], Esq. March la, 1996, Superior Court of Ph Notice of Appeal Docketing to . 205 HBG 1996. filed. exhibit A BARBARA MilLIKAN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HOSPITAL, DEFENDANT 95.3482 CIVIL TERM lli.BE: PRELIMINARY OBJECTIONS TO COMPLAINT t;3EFORE SH~m, P,J. AND BAYLEY. J. OPINION AND ORDER OF COURT BAYLEY, J., February 9, 1996:-- Plaintiff, Barbara Millikan, filed a complaint against defendant, Holy Spirit Hospital. Plaintiff alleges that her blood was drawn In a pre-admission procedure for surgery on her nose. The blood was sent to the Holy Spirit Hospital laboratory. During a post-surgery visit with her physician on July 6, 1993, the physician received a telephone call from an employee of the Holy Spirit Hospital laboratory Informing him that the laboratory results of plaintiff's blood "tested positive for antibodies known to react with the Human Immunodeficiency Virus [HIV] type 1 and type 2." The physician Informed plaintiff of the report. On the same day plaintiff was Informed of a second test, a Western Blot test, performed by the Holy Spirit laboratory on her blood confirming the presence of antibodies of the AIDS virus. Over the next couple of weeks, plaintiff and her husband and daughter were given a series of blood tests that came back negative for the AIDS virus. The results of the blood test and second confirming test reported to plaintiff from the Holy Spirit laboratory on July 8, 1993, were actually for tests performed on the blood of a person other than plaintiff. Plaintiff avers that Holy Spirit Hospital was negligent In testing the blood of someone else, 95-3482 CIVIL TERM and then reporting the results of those tests to plaintiff. She seeks damages for 'severe, permanent Injuries Including humiliation, embarrassment, mental anguish and mental distress," and "loss of life's pleasures." Plaintiff also avers that she "was required to undergo additional testing and medical treatment which testing and medical treatment caused [her] to Incur medical bills for which a claim Is made." Defendant flied a demurrer to plaintiff's complaint which was briefed and argued on January 31, 1996. A demurrer Is to be granted only where, as a matter of law, there can be no recovery on the facts alleged. Wurth v. City of Philadelphia, 136 Pa. Commw. 629 (1990). In Lubowltz v. Albert Einstein Medical Center, 424 Pa, Super. 468 (1993), the facts were; In August 1985, appellants participated In the Hospital's In vitro fertilization program. An egg was removed from Robyn Lubowltz and was placed with a sample of her husband's sperm into a placental serum provided by an anonymous donor. The embryo was then Implanted, and Robyn Lubowltz became pregnant; she later suffered a miscarriage which Is unrelated to this action. On or about November 18, 1985, Dr. Freedman informed the appellants that the Hospital had performed an enzyme linked Immunosorbent assay ("ELISA") test of the donated placental blood which had been used In their In vitro fertilization procedure. The blood had tested positive for the Acquired Immune Deficiency Syndrome ("AIDS") antibody, HTLV-111. After receiving this Information, appellant Robyn Lubowltz allegedly experienced mental distress and various physical aliments, Including recurrent nausea, vomiting and diarrhea. The Hospital then conducted additional blood tests on the placental donor and appellant. An ELISA test of appellant's blood was returned negative for the AIDS antibody on November 23, 1985. The Hospital also sent blood samples from appellant and the placental donor to Washington, D.C., so that another AIDS test, the Western Blot analysis, could be performed. On January 29, 1986, the placental -2- 95-3482 CIVIL TERM donor's blood tested negative for the AIDS antibody, and on February 7, 1986, appellant's blood also tested negative. (Footnote omitted). The trial court granted the Medical Center's motion for summary judgment on plaintiff's causes of action alleging negligent Infliction of emotional distress and negligent performance of an undertaking to render services. The Superior Court of Pennsylvania affirmed, concluding; It 15 undisputed that appellants have never tested pcsltlve for the AIDS antibody. Moreover, although Robyn Lubowltz alleges that sho suffered physical manifestations of emotional distress, the actual Injury at Issue Is the "fear of AIDS." Whether such fear Is a compensable Injury It an Issue of first Impression In this Commonwealth. However, we are guided by decisions which Involve similar "risk of contracting disease" claims. See, e.g., Ollavlo v. Flbreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992); AllIere v. Flbreboard Corp., 421 Pa.Super. 297, 817 A.2d 1302 (1992); Marlnarl v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992). In Ottavlo, the plaintiff filed an action against numerous manufacturers of asbestos products to recover for Injuries allegedly sustained as a result of workplace exposure to asbestos. Id. at 286, 817 A.2d at 1297. Otlavlo sought damages for pleural thickening and a fear of developing future diseases, Including cancer, allegedly caused by exposure to asbestos. Id. An en banc panel of this court held that "Ollavlo was entitled to recover compensation only for that disease, If any, which existed at the time of trial. He could not recover In an action for asymptomatic pleural thickening monetary damages for the risk of a future disease such as cancer." Id. at 296, 617 A.2d at 1302. Likewise, the most that Robyn Lubowitz could aver In this case was that she "has a rational basis to believe she was exposed to the AIDS virus" because of the positive results of the Initial test performed on the placental donor's blood. Appellants' Brief at 14. This simply Is not enough. As In Ollavlo, Robyn Lubowltz cannot recover, In her asymptomatic slate, ,nonetary damages for a risk or fear of developing AIDS In the future. -3. 95-3482 CIVIL TERM We realize that there are factual questions with respect to the appellees' negligence and Robyn Lubowltz' actual physical harm. Nonetheless, these factual Issues are Irrelevant under the circumstances of this case, where appellant's symptoms were not caused by the AIDS virus Itself. Because there Is no legally cognizable Injury, there can be no recovery for the alleged negligence. (Footnotes omitted). In Griffin v. American Red CrosB, 1994 U.S. Dlsl. LEXIS 16838 (E.D. Pa, November 24, 1994), plaintiff donated blood at the American Red Cross In anticipation of her upcoming hysterectomy. A representative of the Red Cross contacted plaintiff's surgeon a few weeks later and stated that plaintiff's blood had tested positive for HIV. The surgeon Informed plaintiff of the test, but took another blood sample which, within 24 hours, tested HIV-negatlve. Plaintiff Instituted suit against the Red Cross for negllgentlnfllcllon of emotional distress. Citing Lubowltz v. Albert Einstein Medical Center, supra, the District Court concluded that Pennsylvania law does not recognize a cause of action for negligent Infliction of emotional distress based on a "fear of AIDS." Noting that this court Is not bound by the decision of the District Court, plaintiff herein distinguishes Lubowltz by arguing In her brief that "she had no fear of contacting AIDS through a possible exposure a~ iJiiJ the plaintiff In Lubowltz;" rather she "was told unequivocally that she had AIDS, not that she was at a greater risk or might develop this dreaded disease at some uncertain time in the future.'" That 15 a distinction without a legal difference because, as the District Court stated In Griffin, where plaintiff was told that her blood tested 1. What plaintiff means Is that she was told unequivocally that she had the HIV virus, not AIDS. -4- 95-3482 CIVIL TERM positive for HIV: "The most [she] could allege was a 'rational basis to believe' that there was an exposure to the AIDS virus." Plaintiff here, as In Griffin and Lubowltz, cannot and does not allege that her symptoms are causerJ by the AIDS virus. Rather, her symptoms were caused by a mistaken belief that she had HIV, which was corrected when subsequent tests of her blood showed that she was not HIV.lnfected. Plaintiff's claimed symptoms do not arise out of exposure to the disease Itself; therefore, we agree with the District Court, that under Pennsylvania law as set forth by the Superior Court, a fear of having HIV and of developing AIDS In the future, Is not a compensable Injury. We are bound by Lubowltz.2 If the law Is to change In Pennsylvania, It must be pronounced by the Supreme Court of Pennsylvania. Plaintiff has not stated a cause of action for ne!]lIgentlnfllctlon of emotional dlstress.3 2. Plaintiff notes some cases In other jurlsdlct:ons. In Marchlca v. Long Island R.R. Co., 31 F.3d 1197 (2nd Clr. 1994). a FELA case, plaintiff Incurred a puncture wound from a hypodermic needle hidden in a pile of refuse he was clearing out. Although never testing positive for HIV, he was allowed to recover on a claim for emotional distress without proving actual exposure or reasonable medical probability of later developing the virus. See also, Castro v. New York Life Insurance Co., bile N.Y.S.2d 695 (1991). In Faya v. Almaraz, 620 A.2d 327 (Md. 1993), the Court of Appeals of Maryland allowed a case to proceed In which the plaintiff claimed that hor surgeon, who was Infected with the AIDS virus, had a legal duty to Inform her of that condition before operating on her, and, failing that, her fear of having contactoothe AIDS virus from the Infected surgeon constituted a legally compensable injury even though she had not shown HIV-positlve status. The Court made a review of cases In various Jurisdictions that have differed on the question of recovery of damages for the fear of AIDS and attendant physical consequences absent an HIV.posilive test. 3. Plaintiff has also failed to plead sufficient physical manifestations sufficient to constitute the physical 11arm necessary to sustain a cause of action for negligent Infliction of emotional distress. Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36 (1993); Houston v. Texaco, Inc., 371 Pa, Super. 399 (1968). -5- n '_.~ ~-'.I " C j " , , ...': .' ! 1-' I. , ., ,I,.! , ., (,'1 , , ,:) ., :1 , , ',. Vi " " , , :J '" . ., :.'] c..) ...., .,