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When Donald Fisher received a letter from the American Red Cross declining his donated blood because it allegedly tested positive for syphilis, he had his blood tested by a hospital to prove he didn’t have the infection. Then he and his wife, Paulette, sued for intentional and negligent infliction of emotional distress. But an Ohio appeals court has upheld a lower court ruling that the Fishers’ suit is meritless, even if the blood test was erroneous — which the Red Cross claims it was not. The appeals court, in upholding a lower court’s summary judgment, sidestepped the question of whether the Red Cross blood test was in error. Fisher v. American Red Cross Blood Svcs., No. 9-2000-12 (Ohio Appeals, 3d Dist., Marion Co.). Citing a 1995 Ohio Supreme Court case, Heiner v. Moretuzzo, 73 Ohio St.3d 80, a case in which a man was incorrectly diagnosed as HIV-positive, the appeals court ruled that “Ohio does not recognize a claim for negligent infliction of serious emotional distress where the distress is caused by the plaintiff’s fear of nonexistent physical peril.” The Fisher case is one of several throughout the United States involving allegations of misdiagnosis, and whether the plaintiff has standing to sue for emotional distress. The Pennsylvania Supreme Court has agreed to review a case in which a plaintiff believed he was HIV-positive for a year based on an alleged misdiagnosis. Doe v. Philadelphia Community Health Alternatives AIDS Task Force, No. 3451. Attorney Hillel Lewis of Philadelphia, who filed the appeal in Doe, said his client experienced depression. The 2nd U.S. Circuit Court of Appeals has ruled that negligent misdiagnosis of HIV would be recognized as a cause of action for negligent infliction of emotional distress. Baker v. Dorfman, No. 99-7528. Proceedings in Fisher have not established whether the blood test was accurate. The Red Cross contends it used the latest technology to protect the blood supply and it found that Fisher’s blood showed signs of syphilis infection — either at the time he was tested or sometime in the past. Plaintiffs’ attorney J.C. Ratliff of Marion, Ohio, did not return telephone calls seeking comment. The Fishers could not be reached for comment. Mr. Fisher maintained that the Red Cross’ letter was in error and that the allegation that he had a sexually transmitted disease caused him and his wife to suffer emotional distress. To prove his blood was not tainted, Mr. Fisher had his blood tested at Marion General Hospital in late 1995 and at Morrow Hospital in early 1998. Both tests came back negative. In response to the Fishers’ suit, the Red Cross won a summary judgment in January. The Fishers appealed. The appeals court ruled that the Fishers could recover for intentional infliction of emotional distress only if, among other things, “the conduct was so extreme and outrageous as to go beyond all possible bounds of decency.” Red Cross attorney Joyce D. Edelman of Columbus, Ohio, said the Red Cross stands by its test. She said the agency had acquired a more exacting test, called the PKTP test, and that a “confirmatory test” on Mr. Fisher’s blood was administered using a test called the FTA-ABS test. Both turned up positive. Edelman contended that the first negative test obtained by Mr. Fisher came from the older, less specific RPR test. The court opinion said Mr. Fisher had his blood tested using the ABS method on Jan. 26, 1998, and that his blood tested negative for syphilis. Edelman said the Red Cross maintains that the ABS test used in 1998 was not one designed for detecting syphilis infection. She said that the RPR test was formerly used by the Red Cross, and that it gave Mr. Fisher a clean bill of health in 11 previous instances of donating blood. “The PKTP test was implemented in March 1991, which was subsequent to Mr. Fisher’s initial 11 blood donations,” Edelman said.

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