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Contrary to the trend on the Pennsylvania side of the Delaware River, the Appellate Division in New Jersey has ruled that a doctor who misreads a HIV test and tells the patient it is positive can be held liable for emotional damages caused by the misdiagnosis and advice. In John Doe v. Paul Arts, M.D., the New Jersey appeals judges distinguished cases of physician error from general “fear of AIDS” cases, for which emotional distress damages are limited by the state Supreme Court’s ruling in Williamson v. Waldman. In one important Pennsylvania case, however, the courts appeared to reject a claim of negligent misdiagnosis, and instead characterized the case as a “fear-of-AIDS” action, which state law doesn’t recognize as a claim. In the New Jersey appellate case, Judge Edwin Stern wrote, “This is not a ‘fear of AIDS’ case because it does not involve the emotional reaction to plaintiff’s possible exposure to body fluids carrying HIV. “Rather, this was a case of the misreading of test results and the rendering of a negligent diagnosis,” Stern said. “In fact, informing a patient that he or she is HIV-positive undoubtedly gives rise to emotional distress beyond the fear of contracting AIDS.” Stern was joined by Judges Donald Coburn and Donald Collester Jr. in the decision The New Jersey Doe case stands in contrast to recent misdiagnosis cases decided in Pennsylvania. In Wilder v. United States, U.S. District Judge J. Curtis Joyner in November 2002 dismissed a medical malpractice suit brought by a woman who claimed she had had four abortions in less than eight years because she was mistakenly told that she had contracted HIV. After ruling that state law could not support the plaintiff’s fear of AIDS claim because she had not been exposed to the virus, the judge rejected the plaintiff’s emotional distress claims because she could not show that the misdiagnosis was the proximate cause of any injury. Additionally, Joyner decided that the emotional distress claims were invalid since the plaintiff did not present medical or psychiatric evidence that showed she suffered psychological injury due to the HIV diagnosis. Similarly, in early 2000, the Pennsylvania Superior Court rejected the emotional distress claim of a plaintiff who was misdiagnosed with AIDS and underwent treatment for the disease for a year before learning that he had not contracted the virus. The court in Doe v. Philadelphia Community Health Alternatives AIDS Task Force ruled that the plaintiff had no claim because state law did not recognize a cause of action for fear of AIDS. In arguments before the state Supreme Court, plaintiff John Doe’s attorney characterized the case as one of negligent misdiagnosis rather than fear of AIDS. But the high court affirmed the decision of the Superior Court without issuing an opinion. Finally, again in 2000, a Superior Court panel determined that a hospital’s erroneous diagnosis of syphilis could not be blamed for the breakdown of a marriage, the physical violence that followed or a plaintiff’s loss of employment. The court in Brown v. Philadelphia College of Osteopathic Medicine relied on its earlier decision in the Doe case and held that plaintiff Yvette Brown could not recover for emotional distress because she had failed to present evidence that her distress was accompanied by a physical impact. In the New Jersey Doe case, John Doe in 1990 moved in with his girlfriend, identified as S.P., whose husband had died a year earlier from AIDS-related complications. Although S.P. did not have HIV, Doe obliged her request that he be tested. Arts conducted the test on March 4, 1991. Several weeks later, he told S.P. on the telephone that Doe had tested positive. In a later telephone conversation, he told Doe the test was positive and there was no possibility of a mistaken test result, according to court records. Doe underwent medical treatment and, after contemplating suicide, began seeing a mental health therapist in 1994. The therapist, Jean Festa, was suspicious of the test results because Doe showed no outward symptoms. She reviewed the test and determined he was not HIV-positive. A second test confirmed her opinion, court records state. Even after learning of the negative results, Doe continued to be severely depressed because of changes that had taken place in his life since being told he was HIV-positive. He was taking psychotropic medications. He had lost his relationship with S.P. and his photography business. He could not maintain a steady job nor could he afford to pay his taxes, according to court records. The jury returned a $300,000 jury verdict for Doe, finding Arts to be 100 percent liable for his emotional distress. The appeals judges agreed that the standards set in Williamson for fear-of-AIDS cases did not apply. There, the court limited emotional distress damages to a six-month “window of anxiety” after a possible exposure to HIV, within which a “reasonable and well-informed person” could fear having contracted the disease. Karen Williamson was cleaning a medical office when she was pricked by a used, improperly discarded hypodermic needle. Her physician initially told her that she would have to be tested for HIV for seven to 10 years, then modified that to one to two years. Williamson could not recover emotional damages for that entire seven- to 10-year period because her fears were not reasonable, according to the opinion. That standard, said Stern, could not apply to Doe, who was told he had tested positive and who spent the next three years actually believing it. What’s more, because Doe continued to experience severe emotional distress after learning he was not HIV-positive, the jury could consider damages for that distress. Stern wrote that Arts did the correct thing by directing Doe to HIV specialists. Stern found, however, that “the proofs justify a finding that Arts breached the standard of care by failing to give plaintiff pre-test and post-test counseling, by misinterpreting the test results, by incorrectly advising plaintiff that he was HIV-positive, and by giving the results over the telephone rather than informing the plaintiff in person. In addition, Arts may have breached the standards of confidentiality by disclosing the results to S.P.,” the panel concluded. “Here, you have medical malpractice,” said Doe’s lawyer, Robert Jenner, a partner at Baltimore’s Janet Willoughby Gershon Getz & Jenner who specializes in HIV-related medical malpractice cases. “He was told by a health care professional that he was HIV-positive. That is negligence.” Arts’ attorney, James Korn, a partner at McDonough Korn & Eichhorn, could not be reached for comment. This article originally appeared in the New Jersey Law Journal , a publication of American Lawyer Media. Jennifer Batchelor contributed to this article.

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