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A state Supreme Court justice in Manhattan has rejected an effort by New York City to limit to six months a claim for emotional distress from a nurse who was pricked by an HIV-contaminated needle. Justice Sheila Abdus-Salaam declined to follow a pair of Appellate Division, 2nd Department, cases proffered by city lawyers, and instead relied on a 3rd Department ruling in concluding that where “special circumstances” are present, emotional damages in needle-prick cases need not be limited to six months. The ruling was a victory for Helen Ornstein, who had worked as a nurse in the emergency room at Bellevue Hospital before she was pricked by a needle on Sept. 1, 2000, as she was cleaning a patient who was critically ill with AIDS. The city sought to limit Ornstein’s claims for emotional damages on the strength of the two 2nd Department cases that imposed the six-month limit because there is “a consensus in the medical community” that the HIV virus develops within six months of exposure. Any fear of developing HIV by a person who has tested negative for six months after exposure is “unreasonable as a matter of law,” the 2nd Department concluded in Brown v. New York City Health and Hospital Corporation and Taomina v. State of New York. Ornstein, who tested negative for HIV for more than six months, however, did not couch her claim as one for “AIDS phobia,” as was the case in both Brown and Taomina, Justice Abdus-Salaam wrote. Instead, Ornstein claims she is suffering from “post-traumatic stress disorder” and unable to return to work in an emergency room for fear of again being pricked by a needle. At trial, Ornstein will attempt to establish negligence by claiming that doctors at Bellevue failed to exercise reasonable care when they left the discarded needle in the AIDS patient’s bed. Justice Abdus-Salaam followed the 3rd Department’s ruling in Fosby v. Albany Memorial Hospital. In Fosby, the panel rejected a claim for “AIDS phobia,” but allowed one for the negligent infliction of emotional distress where “special circumstances” warranted. In concluding that special circumstances were present in Fosby, the appeals court noted that the hospital in that case had refused to give a nurse who had been pricked a copy of a report that would have shown how the needle had been used before she had been stuck. The 3rd Department also pointed out that the hospital had advised the nurse that she should consider the needle infectious and should be tested for the HIV virus three times within a year. The nurse in Fosby tested negative for HIV. In comparing the situation of the nurse in Fosby to Ornstein’s, Justice Abdus-Salaam found an “even more compelling” case for a finding of special circumstances. Unlike the nurse in Fosby, Ornstein knew at the time she was pricked that the needle “had been used on an AIDS patient” who “she knew was suffering and in critical condition, and who told her that he wanted to die,” Justice Abdus-Salaam wrote in Ornstein v. New York City Health and Hospital Corporation. Lenore Kramer of Kramer & Dunleavy represented Ornstein. The Health and Hospital Corporation was represented by Assistant Corporation Counsel Amy London.

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