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Agreeing to finally speak on one of the hottest issues in medical malpractice, the Pennsylvania Supreme Court has granted allocatur review to a superior court’s decision that a plaintiff could not recover for the “fear of AIDS.” The plaintiff was misdiagnosed with HIV and believed he had the disease for a year before learning his test results were wrong. The lower court in Doe v. Philadelphia Community Health Alternatives AIDS Task Force said the plaintiff could not sue for the emotional distress that he allegedly suffered as a result of the misdiagnosis and that a fear of AIDS is not a recognized cause of action in the state. But the plaintiff’s attorney, Hillel Lewis of Philadelphia, said the case is not, in fact, a fear of AIDS case because his client, identified as “John Doe,” was actually led to believe he had the disease for a prolonged period of time. “His claim is for a ‘year of AIDS.’ It is distinguishable from the ‘fear of AIDS’ claim. …,” Lewis wrote in his petition for allowance of appeal. A fear of AIDS case requires proof that the plaintiff was negligently exposed to the virus, increasing his risk of contracting HIV. Wrote Lewis, “Exposure to the virus is irrelevant to the wrong claimed by John Doe. There is no claim by John Doe that he is at risk in the future to contract HIV. His claim is for damages as a result of being made to believe that he already had AIDS.” Lewis said the case could have a deep impact on all negligent misdiagnosis cases. “The precedential effect of this case, if allowed to continue as is, will either prevent recovery in all negligent misdiagnosis cases, including misdiagnosis of cancer, syphilis and other venereal disease, tuberculosis, etc., or single out AIDS for discriminatory legal treatment,” he said. White & Williams attorney Austin Hogan in Philadelphia represents defendant Philadelphia Community Health Alternatives AIDS Task Force. He could not be reached for comment at press time. MISDIAGNOSIS According to the Superior Court opinion, Doe went to PCHA for an HIV test after an “unsafe sexual experience” in January 1993. PCHA testified the results of that first test were inconclusive, so it advised Doe to be retested. The results of the second test were also inconclusive. PCHA asked Doe to take a third test, which would take into consideration the fact that he was from Africa. PCHA told Doe he had tested HIV positive on March 30 and referred him to Dr. Michael L. Silverman for further treatment. Silverman’s treatment included T-cell count testing, prescribing AZT, and administering influenza vaccines. Silverman also recommended that Doe participate in a clinical study of AIDS patients with tuberculosis. When Doe was screened for the study in approximately May 1994, it was discovered he was not HIV-positive. Doe claimed because of the defendant’s alleged negligence, he suffered “night sweats, nausea, loss of sleep, skin lesions, rashes, recurring headaches, hair loss, scalp irritation, recurring crying fits and loss of concentration.” Doe said he also suffered anxiety, depression and post-traumatic stress disorder. Philadelphia Common Pleas Court Judge Joseph Papalini granted PCHA’s motion for summary judgment. Doe settled with all defendants except PCHA and appealed the trial court’s ruling to the Superior Court. The Superior Court simply relied on the lower court’s findings in affirming the order, quoting Papalini’s opinion at length. The trial court had said Pennsylvania does not recognize a cause of action for fear of AIDS and that Doe had not set forth a sufficient claim for negligent infliction of emotional distress. To recover for negligent infliction of emotional distress, a plaintiff must prove the defendant had a duty to him or her, the plaintiff suffered a physical impact, the plaintiff was at risk for immediate physical injury, or the plaintiff had a contemporaneous perception of tortious injury to a close relative. The trial court said Doe did not meet any of those criteria. In particular, the court rejected Doe’s argument that the two influenza vaccine injections constituted a physical impact. Citing the 1993 Superior Court case Lubowitz v. Albert Einstein Medical Center, Papalini said the psychosomatic symptoms that Doe experienced were due to his fear of AIDS and did not constitute an impact. Writing for the Superior Court panel, Judge Correale Stevens said the trial court’s reasoning was sound. “[Doe] claims he suffers physical injuries and emotional distress, as enumerated above. The physical injuries alleged, such as sleeplessness and headaches, stem from [Doe's] belief that he was HIV-positive. ‘Fear of AIDS’ claims are not cognizable in the commonwealth of Pennsylvania,” Stevens wrote. “Further, we cannot conclude that two influenza vaccines, which were not the cause of any lasting physical or emotional effects, are sufficient to bootstrap [Doe's] claim that he suffered the ‘physical impact’ necessary to support a claim of negligent infliction of emotional distress.” PETITION In his petition, Lewis said the case is a “natural extension” of the Supreme Court’s 1979 decision Sinn v. Burd, in which the justices said whether severe emotional damage to the plaintiff is reasonably foreseeable by the defendant is the key focus in deciding whether a plaintiff can recover for emotional distress. Lewis said that as a place that offers counseling to people with AIDS, PCHA should have been very aware of the implications of the diagnosis. He also said the Superior Court’s ruling conflicted with one of its other decisions, Murray v. Hamot Medical Center. The Murray court said an HIV-infected person has compensable damages during the time he or she is asymptomatic. Doe suffered the same kind of damages as a person who actually had AIDS but was asymptomatic, Lewis said. “Due to the length of time during which John Doe was misdiagnosed, he suffered the same real injury, in terms of restriction and limitations to his lifestyle, as any person who is diagnosed HIV-positive,” he said. “[Doe] has alleged this injury as social isolation. He stopped having relationships with women, he refrained from sexuality, and he avoided social contact.” Lewis pointed out that the 3rd Circuit in Moore v. Delaware Valley Health Network Inc., from 1994, predicted the Pennsylvania Supreme Court would rule there is a cause of action for emotional distress stemming from the misdiagnosis of tuberculosis. The 3rd Circuit distinguished Lubowitz, calling the Superior Court case one of fear of tuberculosis. The Moore plaintiff’s injuries went beyond fear, the 3rd Circuit said. During the six-months the plaintiff believed she had tuberculosis, she received treatment and had restrictions placed on her lifestyle. “Moore‘s reasoning is persuasive,” Lewis wrote. “The length of time of the misdiagnosis and lifestyle restriction in the instant case is far greater than in Moore. The disease misdiagnosed is far more serious, always fatal with no known cure.”

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