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A cause of action for the fear of AIDS is viable in Pennsylvania so long as the plaintiff was actually exposed to the disease in a manner that is scientifically proven to transmit it, the Superior Court of Pennsylvania has ruled. Because recently the state’s appellate courts have denied plaintiffs’ claims to recover for damages stemming from fear of AIDS cases, the holding in Shumosky v. Lutheran Welfare Services of Northeastern Pa. Inc. at first blush might appear inconsistent with existing case law. But Superior Court Judge Joan Orie Melvin, who wrote the unanimous opinion in Shumosky, said the court was only making “explicit” what has been “implicit” in prior cases. “This commonwealth’s tort law is in accord with the majority view, requiring the plaintiff in a fear of AIDS case to show actual exposure to HIV,” Orie Melvin said. “Additionally, in order to sustain this action we require the existence of a scientifically accepted method of transmission of the virus.” EXPOSURE Patricia Shumosky, a licensed practical nurse employed by Bayada Nurses Inc., was under contract to provide services to Lutheran Welfare Services of Northeastern Pa. On April 16, 1993, she was providing nursing services to a Lutheran Welfare patient when she pricked her finger on a needle she had just used to give the patient an injection. At the end of her shift, Shumosky discovered the patient was suffering from AIDS. When she arrived home, Shumosky contacted Bayada, which instructed her to go to the emergency room. At the emergency room of Nesbitt Memorial Hospital, Shumosky received an HIV test and a hepatitis B shot. The patient Shumosky was treating died a few days later from AIDS-related complications. Shumosky and her husband sued Lutheran Welfare for failing to inform her that the patient had AIDS and for failing to provide her with sufficient equipment to properly care for the patient. She claimed she never would have taken the job if she knew the patient had AIDS, Orie Melvin said. Shumosky alleged she suffered “severe and permanent injuries, including post-traumatic stress disorder,” which resulted in anxiety, depression, nightmares, fear, appetite loss, weight loss, disinterest in sexual activity and headaches. She also claimed she was unable to work for one year after the incident or return to her chosen profession. At no time did Shumosky allege she tested positive for HIV or that she developed AIDS. Lutheran Welfare filed a complaint seeking to join Bayada as an additional defendant. TRIAL COURT RULING Lackawanna County Common Pleas Judge Carlon O’Malley dismissed the third-party complaint and granted Lutheran Welfare’s motion for summary judgment. Shumosky appealed to the Superior Court. O’Malley had relied mainly on two Superior Court decisions, Lubowitz v. Albert Einstein Medical Center and Doe v. Philadelphia Community Health Alternatives AIDS Task Force. In Lubowitz, a woman was told that “placental serum” used in an in vitro fertilization procedure had tested positive for HIV. Thereafter, both the woman and the serum donor tested negative. The Superior Court held the woman could not recover for her emotional distress. In Doe, the plaintiff was mistakenly misdiagnosed with AIDS and then treated for the disease. There were apparently undisputed minor injuries from the treatment, including flu vaccinations, which are at most minimally invasive. The major harm alleged was emotional distress. The Superior Court found that the treatment following the diagnosis was insufficient to constitute an impact. After granting allowance of appeal, the Supreme Court affirmed per curiam without an opinion. Orie Melvin said O’Malley relied on those cases for the “broad proposition” that the commonwealth does not recognize any cause of action for the fear of contracting AIDS. “We disagree with this overly broad application,” Orie Melvin said, finding Lubowitz and Doe distinguishable from Shumosky’s case. SUPERIOR COURT ANALYSIS As Orie Melvin explained, a claim for emotional distress can be sustained under either the impact rule, the zone of danger rule or the bystander rule. Shumosky claimed her case fell within the impact rule. The impact rule was created in Knaub v. Gotwalt in which the state supreme court in 1966 allowed recovery for emotional distress when accompanied by physical injury or impact. Shumosky argued the prick of the needle constituted a physical injury sufficient to substantiate a claim for emotional distress. “In essence, Mrs. Shumosky asserts that the emotional distress resulting from her being stuck by a needle used on an AIDS patient is a natural consequence of that physical injury,” Orie Melvin said. “We agree.” Orie Melvin said the commonwealth has traditionally allowed recovery for emotional distress damages when the distress is accompanied by direct physical injury caused by a defendant’s negligence. Those damages, called “parasitic damages,” are allowed even in cases of a relatively minor physical injury, Orie Melvin said. Orie Melvin cited a similar state supreme court case, Botek v. Mine Safety Appliance Corp., in which a firefighter trainee put on an airpack that had been mistakenly filled with carbon monoxide instead of oxygen. He suffered minor physical injuries and psychological injuries. The high court said all of the firefighter’s psychological and emotional pain was compensable. The Superior Court followed that reasoning in Shumosky’s case. “Accordingly, parasitic damages for fear of AIDS are available where there is a verifiable causal connection between the injury and the possible development of AIDS. Here, as in Botek, Mrs. Shumosky alleges an objective, measurable, and observable physical injury, albeit a needle-stick,” Orie Melvin said. Shumosky then had to prove that Lutheran Welfare was negligent and that her injuries were caused by that negligence. Most jurisdictions, Orie Melvin said, have imposed an objective standard for determining the proximate cause of emotional distress arising from the fear of contracting AIDS. That standard requires actual exposure. “Actual exposure requires more than mere presence of an infected specimen,” Orie Melvin said. “Rather, the existence of a scientifically accepted method of transmission of the virus must coalesce with the presence of an HIV positive specimen.” Orie Melvin said Pennsylvania case law favored that approach. The judge then explained in more detail how Shumosky’s case differed from Lubowitz and Doe. “The fear of AIDS claims rejected in Lubowitz and Doe were predicated upon false-positive HIV tests. This court denied recovery because the symptoms were caused by a mistaken belief that the plaintiffs were exposed to the virus,” Orie Melvin said. “Consequently, the plaintiffs in these cases could not satisfy the actual exposure requirement. Moreover, other than the emotional distress itself, the element of a physical injury or impact was also lacking. Under such circumstances there is simply no objectively reasonable basis to fear contraction of the disease.” Shumosky was actually exposed to the disease, and she suffered a physical impact; she was pricked with a needle used on an AIDS patient as a result of Lutheran Welfare’s negligence, Orie Melvin said. INDEMNITY CLAIM Orie Melvin then focused on Lutheran Welfare’s appeal arguing Bayada was contractually obligated to provide indemnity for Shumosky’s claim. Orie Melvin concluded the contract stated nothing about Bayada assuming responsibility for claims made by its employees. She said it was clear the parties intended for Bayada to operate as an independent contractor rather than an agent of Lutheran Welfare. In addition, Orie Melvin said, the agreement did not say Bayada would indemnify Lutheran Welfare for injuries arising from Lutheran Welfare’s own negligence. Marion K. Munley of Munley Munley & Cartwright in Scranton, Pa., represented Shumosky. She was not able to comment by press time. Lutheran Welfare was represented by Scranton attorney Patrick C. Carey, who also was not available for comment.

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