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  • Taking Chances2:24

Courts are increasingly confronted with emotional distress claims for fear of developing a disease as a result of a health care provider’s negligence.


In 1995 alone, high courts in three states considered this issue. The Florida Supreme Court ruled that a patient may not recover damages for emotional harm caused by a misdiagnosis of HIV unless the patient also suffered physical injury as a result of the misdiagnosis. A recent Connecticut Supreme Court case was also decided in favor of the defendant. But the high court in Alaska has loosened the limitations for cases involving fear-of-disease in its jurisdiction.

In Chizmar v. Mackie, the Alaska Supreme Court ruled that an individual could recover for negligent infliction of emotional distress without physical impact for a misdiagnosis of the HIV virus.

The patient was admitted to a hospital with pneumonia and gastritis. Her physician ordered a blood test and the tests came back “repeatedly reactive,” with a disclaimer that no positive result was possible until further tests were conclusive, informed the patient and her husband that she had tested positive for the HIV virus. IN fact, these tests ultimately indicated that she had tested negative. One month after receiving the misdiagnosis, the plaintiff’s separated from her husband, allegedly due to the stress caused by this mistake.

The trail court denied the plaintiff’s claim, through the traditional rule of requiring accompanying the physical injury. The high court reversed this decision. It stated that the impact rule was “an ineffective screening mechanism” because it prevents valid emotional distress claims being heard, but permits claims based on the most trivial allegations of physical impact to go forward. The court reasoned that since a physician is in fiduciary relationship with a patient, the physician has a duty to refrain from conduct that would forseeably result in a patient’s emotional harm. The court required, however, than an individual’s distress be “serious” or “severe” in order to recover.

The Florida Supreme Court stuck to a more traditional view in its ruling in R.J. v. Humana of Florida. The plaintiff had blood drawn at the defendant hospital. The hospital later informed the plaintiff that the test results showed that he was HIV-positive. When the plaintiff asked his physician 19 months later, however, the test results showed that he was not infected with the HIV virus. The plaintiff sued the hospital, the laboratory, and his physician for negligence and emotional distress for the misdiagnosis.

The Supreme Court upheld the trial court’s dismissal of the case because the plaintiff did not satisfy the Impact Rule. This rule requires that by negligence, the emotional distress must derive from physical injury. This requirement is maintained for public policy considerations. If recovering for emotional distress were allowed without some limitation, like the requirement of physical impact, there would be a proliferation of claims alleging only emotional damages.

The Connecticut Supreme Court addressed a similar question of liability in Barrett v. Danbury Hospital. The patient went to the hospital’s emergency room complaining of abdominal pain. He was placed on a stretcher that was later found to be saturated with blood. The physician conducted two rectal exams to try to determine the source of the blood, but it was later determined that the blood belonged to a previous patient who had used the same stretcher.

The patient claimed that the blood on the stretcher was introduced into his body during the course of the rectal examinations. His claim for negligence against the doctor and hospital was based on his suffering from continual anxiety and fear that he would contract HIV or other life-threatening blood-borne disease. The Connecticut Supreme Court upheld the trial court’s dismissal of this case in favor of the defendants. The Court noted that plaintiff failed to counter the evidence that the blood was not introduced into his body. So according to the ruling, there was no cause of action based on any physical impact or on any reasonable fear of exposure.

Many states have struggled with the issue of whether or not a plaintiff should need to prove physical harm to recover for emotional damages in medical malpractice cases.

These three cases illustrate the diverse paths that have been pursued by the different states.

In the future, it is unlikely that courts will for emotional distress recovery in all cases. However, it is just as likely that new rules will be adopted to allow recovery under certain specified circumstances, particularly when these damages are the result of a callous or thoughtless act on the part of a defendant. For example, in Massachusetts, recovery for emotional distress in the absence of a physical harm may be allowed if the distress in the absence of physical harm may be allowed if the distress is the result of extreme or outrageous conduct, constituting gross negligence.

To avoid being involved in such situations, health care professionals must remain thoughtful and responsive to the emotional, as well as physical, needs of their patients. This is true even if those concerns are only perceived and are not well grounded in medical reality. By taking the time to offer a few helpful minutes of advice and compassion, involvement in such claims is less likely to result.

Fear of Disease Claims

by Attorney Frank E. Reardon

January 1996