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The nuances of “fear of” disease cases were argued before the Pennsylvania Supreme Court in two oral arguments in Philadelphia Monday. Rather than the fear of contracting a disease, these cases focused on the fear of the recurrence of a disease and whether a plaintiff can recover for a negligent diagnosis that caused him to wrongly believe he had a disease. The last time the court spoke out on fear of claims, in Simmons v. PACOR, Inc., it found that a patient’s fear of the possible occurrence of cancer was too speculative to award damages. Simmons held the spotlight in the arguments Monday in both Doe v. Philadelphia Community Health Alternatives AIDS Task Force and Zieber v. Bogert. The plaintiff in the first case argued Monday, Doe, was misdiagnosed as having HIV. He went through a year believing he had the disease and being treated for it before learning the truth. The Superior Court ruled that the plaintiff had no claim because Pennsylvania does not recognize a cause of action for fear of AIDS. The lower court also said the plaintiff could not sue for the emotional distress that he allegedly suffered as a result of the misdiagnosis. The plaintiff’s attorney, Hillel Lewis, claims 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 position is that it should have been addressed as a “negligent misdiagnosis” case. According to the Superior Court opinion in Doe, the plaintiff went to Philadelphia Community Health Alternatives 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 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 or about May 1994, it was discovered that 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. FORESEEABILITY Much of Lewis’ argument focused on the high court’s 1979 decision in Sinn v. Burd in which the justices said the foreseeability of severe emotional damage to the plaintiff as a result of the defendant’s conduct is the key focus in deciding whether a plaintiff can recover for emotional distress. Chief Justice John P. Flaherty suggested that Lewis was recommending an expansion of Sinn, something the court has never done before. Lewis said he was not arguing to expand Sinn. Calling AIDS “the leprosy of this generation,” he said a person obviously suffers emotional harm when the person thinks he or she has the disease. “I don’t believe anyone could argue being told you have AIDS is outside a person’s ability to handle emotionally,” Lewis said. Lewis said the case wasn’t a “question of the limits of science,” but centered on negligence and carelessness. Justice Ralph Cappy asked Lewis if there was any case law condoning a cause of action for misdiagnosis and emotional trauma. Lewis responded that there was not and that his case was one of first impression, but he said it was not far removed from Sinn. “I’m asking you to look at your own decision in Sinn. If a mother who sees her child killed is enough to ensure the grounds for an emotional claim, how more so is it when a doctor tells you you have AIDS?” Lewis said. When attorney Austin Hogan of White & Williams stepped up to the podium arguing for the defense, he began by saying the case was clearly directed by Simmons. The state supreme court said in Simmons that asymptomatic pleural thickening does not constitute a “physical injury,” so it does not support an emotional distress claim. It found compensation can be assessed more accurately when the disease manifests. Cappy noted the distinction of the fact patterns in Simmons and Doe. He said the latter case involved more of a clerical error than any question of science. “Why should you not be held accountable? You’re going to have an emotional reaction [to being diagnosed with HIV],” Cappy posed to Hogan. Hogan said there is a general policy governing emotional distress cases. He said that policy did not support Doe’s claim. In order 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. Justice Thomas Saylor asked Hogan what kind of floodgates would be opened by allowing a plaintiff like Doe to recover for negligent infliction of emotional distress. Hogan said it would allow for anyone with almost any fatal disease to recover because there would be the same level of distress. Because different people react to emotional distress differently, Hogan argued, a plaintiff should have to show some kind of actual distress. “Nothing was put on the record that AIDS is a death sentence,” he said. Cappy tried to recategorize the case as one of “negligent communication.” “For misinformation, if there’s an injury in the tort negligence concept there’s generally a recovery. You’re telling us to concentrate on the fact that there was no injury?” Cappy said. Hogan said yes, but Flaherty clarified that Hogan meant there was no physical injury and he agreed. CANCER In the fear-of-recurrence case, Zieber v. Bogert, the Superior Court had ruled that plaintiff Robert Zieber could argue to a jury there was a chance he might experience a recurrence of his misdiagnosed cancer. Because Zieber already suffered from cancer and was likely to suffer future complications, the Superior Court said the testimony was properly admitted. Representing the defendant doctor, attorney Alan Starr of White & Williams argued that Zieber’s case was the same as Simmons. According to the facts of the case, Zieber called Dr. Arthur Bogert, his primary-care physician, on June 6, 1992, complaining of severe abdominal pain. Bogert authorized Zieber to go to the emergency room at Roxborough Memorial Hospital. At the hospital, Zieber was examined by Dr. J. Norris Childs, who ordered blood drawn after he felt something in Zieber’s stomach and told him to return to the hospital the next day. When Zieber returned, he looked and felt better, but Childs could still feel a mass in his abdomen. Childs called Bogert to recommend that he order a C-T scan, a barium enema and an upper GI study. Zieber saw Bogert on June 11. Bogert, thinking Zieber had irritable bowel syndrome, ordered the barium enema and upper GI, but not the C-T scan. At a later appointment, Bogert told Zieber the tests had confirmed his suspicion that he had irritable bowel syndrome. Bogert told Zieber he should return if his abdominal pain recurred. In March 1993, Zieber saw a different primary-care physician due to a change in his health-care plan. Dr. Joan Lit ordered a C-T scan, which revealed a large soft tissue mass, indicative of small bowel lymphoma, and many enlarged lymph nodes. Surgery confirmed Zieber had large-cell lymphoma and showed he had two tumors in his stomach, the larger of which was 11 centimeters. He underwent a second surgery to remove the tumors and large sections of his colon and large and small intestines. After the surgery, Zieber developed a hernia and nerve damage. Zieber and his wife sued Bogert and his employer, Roxborough Family Practice. A Philadelphia jury awarded Zieber $800,000 and $200,000 to his wife. The trial judge molded the verdict, and judgment in the amount of $1,095,545 was entered against the defendants. The Superior Court reversed and remanded the decision, however, because the trial court had not given the jury an instruction on comparative negligence. RECURRENCE In addition to Simmons, Starr based part of his argument on Marinari v. Asbestos Corp., in which the Superior Court adopted the “two-disease” rule, allowing an asbestos plaintiff suing for non-cancerous pleural thickening to bring a second action at a later point in time if he develops cancer. Starr argued there was no guarantee that Zieber would suffer a recurrence. “The plaintiff’s expert testified there was a 35 to 50 percent chance of recurrence within a five-year period. Conversely, there was a 50 to 65 percent chance the plaintiff would not suffer a recurrence,” he told the justices. If the court were to adopt Zieber’s reasoning, Starr warned, plaintiffs who never suffer a recurrence could recover, while other plaintiffs might be undercompensated because the jury might make compromises. And, he noted, a claimant is better able to present testimony about the recurrence once it occurs. “If there’s no resultant harm, we can’t say you should receive monetary damages,” Starr said. While some might characterize such cases as “separate disease,” Starr reasoned, it would be more accurate to call them cases of “separate injuries.” Cappy asked if that were the case, then when would the statute of limitations begin to run on the recurrence? “What I envision happening,” Starr said, “is if and when the recurrence occurs, the statute of limitations would run just as it would for the underlying cancer.” Cappy threw out a hypothetical situation. He proposed that if a doctor testified the plaintiff had a 90 percent chance of recurrence and that plaintiff waited until the actual recurrence to file, could the plaintiff be accused of waiting too long to file suit? “The only circumstances when anyone would recover damages under the position I’m advocating is when the cancer has a 100 percent chance of recurrence, when the only question is when the recurrence will happen,” Starr said. Justice Russell Nigro took Starr back to the case of a person with a 90 percent chance of recurrence. “You’re saying the argument could not be made that that plaintiff wasn’t reasonable for not filing?” Nigro asked. “Yes, because it wasn’t a 100 percent chance,” Starr said. Andrew J. Stern of Beasley Casey & Erbstein faced the justices on behalf of Zieber. He said Simmons was quite different from his case. The Simmons plaintiff was afraid of developing a disease in the future, while Zieber went through physical suffering, Stern said. Stern explained Zieber had to go through intense chemotherapy because of the increased risk of recurrence. He said the treatment almost killed his client. Cappy then asked Stern for an interpretation of Starr’s argument. “Simmons was a two-disease case. You’re aware the opponent referred to [Zieber] as a two-injury case. Do we have any case law?” he asked. Stern said there was a 1980 state supreme court case on point — Gradel v. Inouye. In Gradfel, the plaintiffs argued that a doctor’s failure to biopsy and remove a soft-tissue tumor increased the likelihood of an occurrence of fibrosarcoma. The justices said the plaintiffs could present testimony to explain the future effects of the negligent treatment. “It is not equitable for a plaintiff to not be given the opportunity … to say, ‘We’re not going to let the jurors hear what you’re going through,’ ” Stern said.

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