Follow-up AIDS testing may protect patient and hospital
April 1, 1996 4 minutes read
Follow-up AIDS testing may protect patient and hospital
By Gregory F. Reis, JD, and Christopher E. Butler, JD
Adams, Hill, Reis, Adams, Hall & Schieffelin
Orlando, FL
The influence of AIDS in the legal arena has expanded in recent years, flooding the courts with emotional-distress claims based on fears of contracting the disease. As more people are tested for HIV, the potential for misdiagnosis resulting from negligent testing also has increased.
A claim for negligent infliction of emotional distress is not a novel cause of action, but its application to an HIV diagnosis is one with which courts are increasingly being confronted. Such was the case in which the Florida Supreme Court was asked to decide if the "impact rule" applied to a claim for damages from a negligent HIV diagnosis.1
Originating in Florida during the late 19th century, the "impact rule" essentially states that a plaintiff cannot recover damages for emotional distress from the negligence of another unless the distress results from physical injuries sustained during an impact.
In this case, the plaintiff underwent a blood test in March 1989 and was informed that the results were positive for HIV. He was referred to a physician for follow-up care and treatment. It was not until the plaintiff requested another blood test nearly two years later that it was discovered he was not HIV-positive.
The defendant hospital, along with the lab and the physician who treated the plaintiff, were sued for negligently misdiagnosing the plaintiff as having HIV. The claim was dismissed by the trial court for failure to meet the requirements of the "impact rule," and the plaintiff appealed. The case ultimately reached the Florida Supreme Court, which had to decide if the "impact rule" applied to a negligent HIV diagnosis.
The plaintiff argued that the "impact rule" should be abolished altogether. The court rejected this argument, stating the "impact rule" has a long history in Florida, and the rationale supporting it still is valid.
The court noted that without the rule, a potential defendant would have difficulty determining whom it may have injured. For example, if everyone who witnessed an accident could sue for emotional distress as a result of merely seeing the accident, the courts would be flooded with claims of individuals alleging severe emotional damage from having seen someone killed in an automobile accident.
Court refused special exception
Next, the plaintiff argued that if the "impact rule" were not abolished, an exception should be created for negligent HIV diagnosis. Again, the court rejected this argument, stating that such a ruling would have a profound impact on providing medical care and treatment. The court could not create an special exception only for negligent HIV diagnosis cases without also including claims for emotional distress from any misdiagnosis as a result of negligent testing. This would leave a door open for all patients who were negligently misdiagnosed with a serious or terminal illness, such as cancer, to claim severe emotional damage.
Defining physical injury
Finally, the plaintiff argued that he met the requirements of the "impact rule" by alleging that the negligent HIV diagnosis caused bodily injury in the form of hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and reasonable medical expenses.
The court noted that such injuries are too intangible and insufficient to be considered physical injuries as required by the rule. As applied to a medical negligence case resulting from a misdiagnosis, the "impact rule" requires the negligent diagnosis to result in unnecessary and harmful medical treatment causing bodily injury, such as any unnecessary invasive surgical procedure or the prescription of medication with toxic or adverse side effects.
[R.J. v. Humana of Florida, 652 So.2d 360 (Fla. 1995).]
COMMENTARY
Despite the Florida Supreme Court's ruling that the "impact rule" was not applicable in this case, a patient still may have a claim for emotional distress from a negligent HIV diagnosis if an invasive procedure is performed or toxic medications administered as a result of a misdiagnosis. Risk managers must keep in mind the potential problems that could arise when a patient is diagnosed with HIV while in their facility.
Patients who receive a positive HIV test should be advised to have a repeat HIV test performed to ensure its accuracy before any invasive procedures are performed or toxic medications administered. If the second HIV test also is positive, the patient then can be recommended for appropriate treatment with more confidence. Likewise, risk managers also should take care to communicate with other practitioners who are following up with HIV-positive patients to initiate a second HIV test prior to recommending or prescribing treatment with such toxic drugs as zidovudine (commonly known as AZT). *
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