HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/WVAHOS.ASC

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/* This case is reported in 413 S.E.2d 889 (W.Va. 1991). In this
case, the West Virginia Supreme Court encounters an extremely
difficult case. The plaintiff (appellee), while acting as a
police man was bitten by a patient known to have AIDS.
Significant to this case was that the hospital was supposed to
warn employees, and police in particular, of the danger from a
violent person infected with HIV. After the exposure to the
patient's blood, the plaintiff lost his family due to their fear
of contracting HIV-- although there is no indication that the
plaintiff ever was infected. The $2 million dollar verdict was
upheld, the court finding that the common law requirements for
the tort of intentional infliction of emotional distress were
met. Since the plaintiff was NOT employed by the defendant,
worker's compensation benefits did not apply. The case warns of
the necessity for hospitals to warn police if they are required
to subdue persons with HIV. It also illustrates the level of fear
that persons showed to HIV in 1988.*/



WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Defendant Below,
Appellant.

 v.

 Lofton JOHNSON, Plaintiff Below, Appellee,

 Supreme Court of Appeals of West Virginia.

Submitted May 14, 1991.

Decided Nov. 21, 1991.

Rehearing Denied Feb. 13, 1992.



McHUGH, Justice:



This case is before the Court upon the appeal of West Virginia
University Hospitals, Inc., the defendant below, from a jury
verdict rendered in the Circuit Court of Monongalia County.  The
appellee and plaintiff below is Lofton Johnson. The verdict
against the appellant was in the amount of $2 million, reduced to
$1.9 million by the appellee's 5% contributory negligence.



I.

The appellee was a police officer, employed by the West Virginia
University Security Police. [footnote 1]  On June 2, 1988, a
patient was brought to the appellant's hospital. The patient,
when he was conscious, was very abusive and combative, used
obscene language,  and  was  generally  unruly. There were about
seven doctors and nurses present in the emergency room where they
were tending to the patient.  During this time, the patient
stated that he was infected with acquired immune deficiency
syndrome (AIDS).

Due to the patient's unruly behavior, the appellee was called to
the scene. Initially, the appellee only observed the scene, but
when the patient's bed fell over and it appeared that the medical
personnel needed help in restraining the patient, the appellee
attempted to assist.  As the appellee was lifting the patient
back onto the bed, the patient bit the appellee on the appellee's
forearm.

The appellee asserted that at this point, he had not been told by
anyone at the hospital that the patient was infected with the
AIDS virus although the hospital personnel dealing with the
patient knew that he had AIDS.  It was only after he had been
bitten and was washing out the wound that one of the paramedics
informed the appellee that the patient had AIDS.

The appellee filed a suit against the appellant in the Circuit
Court of Monongalia County, based on negligence. Specifically,
the appellee claimed that the appellant negligently failed to
advise him that the patient had AIDS, and that as a result of his
exposure to AIDS, the appellee has suffered from emotional
distress.

At trial, there was evidence that the patient had bitten himself
on the arm, and that the patient's own blood was in and around
his mouth when he bit the appellee.

The appellee testified that he had, on previous occasions,
assisted in restraining AIDS patients, but it was always the
hospital's procedure to inform the restraining officer of such so
that proper precautions could be taken.  Furthermore, evidence
was introduced that the hospital failed to post warning signs at
the emergency room pursuant to rules and regulations of the
hospital, despite the fact that the attending hospital personnel
knew that the patient with whom they were dealing had AIDS. These
signs would have warned others that the patient in the hospital
room had an infectious disease.  The evidence in this case
establishes that at least one-half hour elapsed from the time the
hospital personnel learned that the patient had AIDS to the time
the appellee began assisting with the patient.

Evidence was also introduced during trial that, after the
incident, the appellee's wife refused to have sexual relations
with the appellee. [footnote 2]  There was also evidence that the
appellee's children did not want to be around him, nor did they
want their children (the appellee's grandchildren) around him,
due to a fear that they may contract AIDS.

Although the appellee is regularly tested for AIDS, he has not
contracted the disease.  However, the appellee's treating
psychologist testified that the appellee suffers from "post
traumatic stress disorder," and considers himself a social
outcast. There was also testimony that the appellee suffers from
sleeplessness, is shunned by coworkers and superiors, and is very
uncertain about his future.

As stated previously, the jury returned a verdict in favor of the
appellee in the amount of $2 million, reduced to $1.9 million by
the appellee's 5% contributory negligence.

Following the jury verdict, the circuit court denied the
appellant's motion for a judgment notwithstanding the verdict,
or, in the alternative, for a new trial.  This appeal ensued.



II.

In this case, we address a question of damages arising from a
disease that has become a serious public health concern over the
last decade, AIDS, which is the last phase of human
immunodeficiency virus (HIV). [footnote 3]

The appellant's primary contention is that the damages awarded in
this case were improperly speculative and that the jury was not
properly instructed on the emotional distress damages. The
appellant argues that the trial court should not have denied its
motion in limine, which motion would have excluded evidence of
the appellee's emotional distress unless the appellee could prove
that it was reasonable.

[1, 2]  Damages are not recoverable if the related injurious
effect is too speculative.  See syl. pt 7, Jordan v. Bero, 158
W.Va. 28, 210 S.E.2d 618 (1974). However, in this case, the issue
is not whether the damages awarded the appellee are speculative.
Rather, the damages recovered in this case are for the emotional
distress from which the appellee currently suffers. Accordingly,
the critical issue in this case concerns whether the emotional
distress damages awarded are recoverable under the circumstances
of this case.

Prosser and Keeton on the Law of Torts  54, at 361 (W. Keeton 5th
ed. 1984); Restatement (Second) of Torts  436A (1965).

The Court has recognized this traditional principle: "There can
be no recovery in tort for an emotional and mental trouble
without ascertainable physical injuries arising therefrom, ...
through the simple negligence of the defendant[.]"  Syl., in
part,  Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 36
S.E.2d 475 (1945).



[4]  In this case, there is evidence of physical injury. The
appellee was bitten on the arm by the appellant's patient In
addition to the wounds inflicted by the bite, the appellee's
physical injuries include sleeplessness, loss of appetite, and
other physical manifestations accompanying the emotional distress
suffered by the appellee. See Allen v. Smith,  179 W.Va. 360,
363,  368 S.E.2d 924, 927 (1988); Harless v. First National Bank,
169 W.Va. 673, 688, 289 S.E.2d 692, 701(1982); Monteleone v. Co-
Operative Transit Co., 128 W.Va. 340, 347, 36 S.E.2d 475, 478
(1945).

Other courts have addressed the issue of emotional distress
damages arising from a fear of contracting AIDS.  In Hare v.
State, 173 A.D.2d 523, 570 N.Y.S.2d 125 (1991), a New York
appeals court affirmed the lower court's ruling that a plaintiff
could not recover damages for emotional distress arising from a
fear of AIDS. In Hare, the plaintiff, a hospital employee, was
bitten by an inmate who was transferred to the hospital following
a suicide attempt.  The plaintiff was attempting to subdue the
inmate. The Court of Claims of New York denied the plaintiff's
claim of emotional distress damages based upon a fear of
contracting AIDS because there was no evidence that the inmate
was even infected with the AIDS virus.  Rather, the inmate who
bit the plaintiff in Hare was merely rumored to be suffering from
AIDS. Therefore, the plaintiffs claim for emotional distress
damages in that case was held to be too remote and speculative.

[3]  As a general rule, absent physical injury, there is no
allowable recovery for negligent infliction of, emotional
distress.

In Burk v. Sage Products, Inc., 747 F.Supp.  285 (E.D.Pa.1990),
the United States District Court for the Eastern District of
Pennsylvania recognized that a plaintiff may recover emotional
distress damages for fear of AIDS.  However, the court also
pointed out that before such a recovery may be made, the
plaintiff must demonstrate that he or she has been exposed to the
disease or cause thereof. The plaintiff in Burk was unable to
demonstrate such an exposure, and consequently, his claim for
emotional distress damages was barred. [footnote 4]

Similarly, in  Doe  v.  Doe, 136 Misc.2d 1015, 519 N.Y.S.2d 595
(Sup.Ct.1987), a wife, in a divorce suit, sought damages for
intentional infliction of emotional distress based upon her
husband's failure to disclose that he had had a homosexual rela
tionship, which the wife alleged placed her at risk of
contracting AIDS.  The court denied the wife's claim, pointing
out that neither she nor her husband had contracted AIDS.  The
court also raised the absurd possibilities of recognizing such a
claim where there is no proof of exposure to AIDS.  For example,
the court suggested that recognition of this claim would force a
person who has had a recent blood transfusion "to disclose this
fact to their prospective or current spouse or risk a damages
action for 'AIDS-phobia' since such a transfusion may have
resulted in an exposure to the AIDS virus." it at 1019, 519
N.Y.S.2d at 598 (emphasis supplied). Thus, the court aptly
concluded that "[t]he law can be stretched only so far."  Id.

Another area that is relevant to our consideration of this case
is "cancerphobia," arising from asbestos-related torts. It has
been held that damages resulting from a fear of cancer are
recoverable if the fear is reasonable. In re Moorenorich,  634
F.Supp. 634 (D.Me.1986).  On the other hand, it has been held
that a fear of cancer from exposure to asbestos without any
physical indication of disease does not lead to recovery for
emotional distress damages.  Rittenhouse v. St Regis Hotel Joint
Venture,  149  Misc.2d  452,  565 N.Y.S.2d 365 (Sup.Ct.1990).

[5]  It is evident from the above cases that before a recovery
for emotional distress damages may be made due to a fear of
contracting a disease, such as AIDS, there must first be exposure
to the disease. If there is no exposure, then emotional distress
damages will be denied.

[6)  In this case, there was such an exposure. The patient that
the appellee was attempting to subdue had bitten himself on the
arm before he bit the appellee.  As stated previously, the AIDS-
infected patient's blood was in and around his mouth at the time
that he bit the appellee.  The bite broke the appellee's skin and
caused significant bleeding on the appellee's arm. There is no
dispute that the AIDS-infected blood of the patient came into
contact with the blood of the appellee. Expert testimony on
behalf of the appellant acknowledged that this case involved an
exposure. This, of course, would go to the reasonableness of the
appellee's fear.

Moreover, the failure of the hospital to follow its own rules and
regulations by posting a warning that the patient possessed an
infectious disease is a critical factor in this case. Such
regulations clearly impose a duty upon the appellant in this case
to warn those similarly situated with the appellee.  Testimony at
trial revealed that, usually, when the police officers knew that
they were dealing with an unruly AIDS patient, it was their
practice to dress in special clothing and use a blanket to cover
and restrain the patient for the protection of both the officer
and the patient Because the appellee in this case did not know
that the patient had AIDS, no such precautions were taken. This
was a deviation from routine practice in a situation where the
appellee's job involved being in the room assisting the hospital
personnel. As stated previously, at least one-half hour elapsed
from the time the hospital personnel learned of the patient's
condition to the time the appellee began assisting with the
patient.

[7]  The circuit court in this case instructed the jury as to the
reasonableness of the appellee's claim.  Specifically, the
circuit court instructed:

It is a contention of plaintiff that because of being bitten in
the emergency room on June 2, 1988, he now suffers great mental
distress associated with fear that he may acquire AIDS. You are
instructed that plaintiff cannot recover for such mental distress
merely because he was bitten by a person suffering from AIDS.
Before he can recover for an increased  fear of contracting AIDS,
plaintiff must prove by a preponderance of the evidence that his
fear of contracting the AIDS disease is reasonable under all the
facts and circumstances proven in this case. [footnote 5]

(emphasis supplied)

Under the circumstances of this case, this instruction is sound.
It pointed out to the jury that the appellee could not recover
emotional distress damages merely because he was bitten, but that
his fear must be reasonable.  The fact that the appellee in this
case was actually exposed to the AIDS virus goes to the
reasonableness of his fear.

[81  Accordingly, we hold that damages for emotional distress may
be recovered by a plaintiff against a hospital based upon the
plaintiff's fear of contracting acquired immune deficiency
syndrome (AIDS) if: the plaintiff is not an employee of the
hospital but has a duty to assist hospital personnel in dealing
with a patient infected with AIDS; the plaintiff's fear is
reasonable; the AIDS-infected patient physically injures the
plaintiff and such physical injury causes the plaintiff to be
exposed to AIDS; and the hospital has failed to follow a regu
lation which requires it to warn the plaintiff of the fact that
the patient has AIDS despite the elapse of sufficient time to
warn.

Our holding in this case, of course, is limited to the facts
before us. We emphasize that our decision herein is not to permit
recovery of emotional distress damages to anyone who comes into
contact with a person who is infected with AIDS or merely
believes that a person is infected with AIDS.  Rather, as stated
above, recovery of such damages is limited to the situation where
the plaintiff is actually exposed to the AIDS virus as a result
of a physical injury, and emotional distress, along with physical
manifestations of such distress, result therefrom.

Therefore, the circuit court did not err in refusing to set aside
the verdict.



III.

The appellant also raises other errors which are less significant
and are discussed in this section.

A.   Proximate Cause

The appellant contends that the appellee failed to prove
proximate cause.  We do not agree.

Evidence was introduced to show that the appellee's job entailed
assisting hospital personnel in dealing with unruly patients.
There was also evidence that the appellant failed to take proper
precautions pursuant to its own regulations by warning the
appellee that the patient whom he was subduing was infected with
the AIDS virus. Finally, there was evidence that the appellee was
exposed to the AIDS virus because of the bite, and that he
reasonably feared contracting AIDS as a result of his emotional
distress.

This Court has held: "Questions of negligence, due care,
proximate cause and con-current negligence present issues of fact
for jury determination when the evidence pertaining to such
issues is conflicting or where the facts, even though undisputed,
are such that reasonable men may draw different conclusions from
them." Syl. pt. 5, Hatten v. Mason Realty Ca, 148 W.Va. 380, 135
S.E.2d 236 (1964). Accord, syl. pt. 3, Dawson v. Woodson, 180
W.Va. 307, 376 S.E.2d 321 (1988).

Clearly, in this case, the facts with respect to proximate cause
are such that reasonable persons could draw different conclusions
from them.

B.   Public Policy

[9) The appellant contends that, based upon public policy
grounds, the emotional distress damages awarded the appellee did
not reasonably relate to the appellant's culpability.

It has been held that emotional distress damages may be barred as
a matter of public policy, for example, where they are based upon
an unreasonable fear of future harm. See, e.g., Brantner v.
Jenson,  121 Wis.2d 658, 360 N.W.2d 529 (1985); ) Howard v. Mt.
Sinai Hospital, Inc., 63 Wis.2d 515, 217 N.W.2d 383 (1974).

The appellant cites W. Va. Code, 16-3C-3 [1988], part of the
"AIDS - Related Medical Testing and Records Confidentiality Act,"
as a ground for supporting this public policy argument.
Subsection (a)(4) of that statutory provision states:

(a)  No person may disclose or be compelled to disclose the
identity of any person upon whom an HIV-related test is
performed, or the results of such a test in a manner which
permits identification of the subject of the test, except to the
following persons:

. . .

(4)  licensed medical personnel or appropriate health care
personnel providing care to the subject of the test, when
knowledge of the test results is necessary or useful to provide
appropriate care or treatment, in an appropriate manner:
Provided, That such personnel shall maintain the confidentiality
of such test results.  The entry on a patient's chart of an HIV-
related illness by the attending or other treating physician or
other health care provider shall not constitute a breach of
confidentiality requirements imposed by this article[.]

The appellant argues that under this section, its duty to warn
the appellee that the patient had AIDS was limited in the first
place, due to the patient's rights of confidentiality.

We do not agree that public policy limits the appellant's duty to
warn in this case, thus barring the emotional distress damages
awarded. W. Va Code, 16-3C-3 [1988] is directed toward AIDS
testing. This case does not involve a situation where a patient
was tested for AIDS. Rather, in this case, hospital personnel
failed to warn an unsuspecting officer of an AIDS-infected
patient's condition. [footnote 6]

C.  Other Errors

1.   Instructions

The appellant also contends that the circuit court committed
error in its instructions with respect to the permanency of the
appellee's injury.

Specifically, the appellant contends that it was error under the
facts of this case to instruct the jury that it was to consider
the permanency of the appellee's injury in determining the award
of damages for the future effects of the injury.

[10]  In this case, although the manifestations of the appellee's
essentially emotional injury may be somewhat obscure, there was
sufficient expert evidence to a degree of reasonable certainty
that the in-jury is permanent.  This type of injury is sufficient
to take the question to the jury and to support an award of
damages for the future effects of such injury. See syl. pt. 13,
Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

Therefore, the instruction given on the permanency of the
appellee's injury was proper.  "An instruction is proper if it is
a correct statement of the law and if there is sufficient
evidence offered at trial to support it." Syl. pt. 5, Jenrett v.
Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).

[11]  The appellant also maintains that the circuit court erred
by refusing to instruct the jury on the appellee's "assumption of
risk."  The circuit court, however, ruled that the facts of the
case do not support such an instruction.  "An instruction which
is not supported by the evidence should be refused."  Syl. pt. 3,
Lilly v. Taylor, 151 W.Va. 730, 155 S.E.2d 579 (1967). See Blair
v. Preece, 180 W.Va. 501, 504~5, 377 S.E.2d 493, 497 (1988),
cert. denied, 492 U.S. 923,109 S.Ct. 3253, 106 L.Ed.2d 599
(1989).

Based upon our review of the record, we find no error on the part
of the circuit court with regard to the instructions given.

2.   Insufficiency of Evidence

[12]  The appellant asserts that the issue in this case is not
decided by resolving whether the verdict is excessive. [footnote
7]   Rather, the appellant contends that the most fundamental
problem is that the appellee has not suffered any damages and
that the evidence in this case was insufficient to support the
verdict  We do not agree.

The verdict in this case primarily represents emotional distress
damages suffered by the appellee.  "[M]ental suffering frequently
constitutes the principle [sic] element of tort damages and can
be composed of fright, nervousness, grief, anxiety, worry,
mortification, humiliation, embarrassment, terror, or ordeal."
22 AmJur.2d Damages  252 (1988).

The appellee presented ample evidence of emotional distress
suffered as a result of the appellant's exposure to the AIDS
virus in the manner heretofore stated. As stated previously
herein, the appellee's condition included symptoms for which
courts have allowed recovery of emotional distress damages. The
appellee's condition includes depression, see Wood v. Mobil
Chemical Co., 50 Ill.App.3d 465, 8 Ill.Dec. 701, 365 N.E.2d 1087
(19?7); stress and worry, see Gilbert v. Parks, 140 Ga.App. 550,
231 S.E.2d 391(1976); sleeplessness, see Roy v. Chalifoux, 95
N.H. 321, 63 A.2d 226 (1948); and anxiety, see Posey County v.
Chamness, 438 N.E.2d 1041 (Ind.Ct.App.1982). With respect to
anxiety, the right to recover damages "may be based on a
reasonable anxiety about the consequences of the tort,
apprehension of future disease, disability or paralysis, or fear
about future surgery." 22 AmJur.2d Damages  254 (1988) (emphasis
supplied) (footnotes omitted).

It is well established by this Court that "'[a] verdict of a jury
should not be set aside on the ground of insufficient evidence,
where the sufficiency depends upon the credibility of witnesses
and the reasonable inferences which may be drawn from the
evidence.' Point 2, Syllabus, Denoff v. Fama, 102 W.Va. 494 [,
135 S.E. 578 (1926)]."  Syl. pt. 1, Raines v. Faulkner, 131 W.Va.
10, 48 S.E.2d 393 (1947). Accort syl. pt. 5, Adams v. El-Bash,
175 W.Va. 781, 338 S.E.2d 381 (1985). [footnote 8]

Clearly, the evidence presented was sufficient for the jury to
determine that the appellee was entitled to recover damages for
emotional distress.  As noted previously, the circuit court
instructed the jury that emotional distress damages could only be
recovered if the appellee's fear was reasonable.  Therefore, the
circuit court did not err by refusing to set aside the verdict in
this respect.



IV.

For the foregoing reasons, the judgment of the Circuit Court of
Monongalia County is affirmed.

Affirmed.



FOOTNOTES

1.   The West Virginia University Security Police is a separate
entity from the appellant, West Virginia University Hospitals,
Inc.  Consequently, the appellee is not employed by the
appellant. This distinction pertains to an assignment of error
raised by the appellant and discussed herein.  See section
III.(C.)(2.), n. 8, infra.

2. In his appellate brief, the appellee states that after thirty
years of marriage, he and his wife are now divorced because she
would not live with him due to the AIDS exposure.

3.   For a digest of facts concerning HIV and its resultant AIDS,
See Benjamin R. v. Orkin Exterminating Co., 182 W.Va. 615, 616 n.
2, 390 S.E.2d 814, 815 n. 2 (1990).

4.   The holding in Burk was relied on in Rossi v. Estate of
Almaraz, 59 US.L.W. 2748, 1991 Westlaw 166924 (Md.Cir.Ct. May 23,
1991). There, the defendant was a doctor who operated on the
plaintiff. At the time of the operation, the doctor had not been
diagnosed with AIDS, but had tested HIV-positive. One year after
the operation, the doctor died of complications from AIDS. The
plaintiff filed suit against the doctor's estate, alleging
intentional infliction of emotional distress. The Maryland
circuit court dismissed the complaint because the plaintiff
failed to prove that she had been exposed to the AIDS virus.

5.   The appellant offered an instruction similar to the one
quoted above, except that it based recovery on whether the
plaintiff "possesses an in-creased statistical likelihood of
developing AIDS and from this knowledge springs a reasonable
apprehension which manifests itself in mental distress."  The
circuit court modified this instruction to the one actually
given.

Similarly, the appellant offered an instruction which based
recovery on whether the plaintiff could show "to a reasonable
certainty" that permanent injury will result.  This instruction,
however, was denied by the circuit court because the appellee was
not seeking damages for an increased risk of contracting AIDS,
but for the fear of contracting AIDS.

6.   Moreover, if W.Va. Code, 16-3C-3 [1988] limited the hospital
from posting warnings, then the hospital's own regulations
pertaining to such warnings would be in violation of this
section.

7.   The appellant does intimate that the verdict may be
excessive by comparison to other verdicts which this Court has
held to be excessive. See, eg., Roberts v. Stevens Clinic
Hospital Inc., 176 W.Va. 492, 345 S.E.2d 791(1986) ($10 million
verdid for wrongful death of child held to be excessive). Because
the excessiveness of the verdict was not a formal assignment of
error in the brief, but is only intimated, we do not ad-dress
this issue in this opinion.

8.   The appellant assigns other errors on the part of the trial
court.

The appellant contends that it is shielded from liability by the
Workers' Compensation Act.  See W.Va.Code, 23-2-6, as amended.
This contention was not asserted as a defense, and was not even
raised by the appellant until it filed its motion for judgment
notwithstanding the verdict. Furthermore, there is no evidence in
the record that the appellant employed the appellee or made
workers' compensation premium payments on the appellee's behalf.

The appellant also raises issues concerning remarks made by
counsel for the appellee during closing arguments. However, the
record is devoid of any objections made by the appellant to these
remarks.

Finally. the appellant contends that the appellee, in opening and
closing statements, sought damages for loss of his
grandchildren's companionship, which is not recoverable in this
state. Again, the record does not disclose objections to these
remarks.