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A Bellevue Hospital nurse whose thumb was punctured by a hypodermic needle earlier used by an AIDS patient may not make a claim for any emotional injury that continued more than six months after the incident, New York’s Appellate Division, 1st Department, has ruled. The decision brings the 1st Department in line with the 2nd Department, which has consistently disallowed claims for emotional distress that take place more than six months after the date of exposure in “AIDS-phobia” cases. “[W]e find that plaintiff has not set forth a legally cognizable claim for emotional distress, including post-traumatic stress disorder, allegedly sustained beyond six months from the date of initial exposure to the AIDS virus,” Justice George D. Marlow wrote for the 3-2 majority in Ornstein v. New York City Health and Hospitals Corporation, 5331. “Indeed, the plaintiff’s claim for post-traumatic stress disorder is simply an end-run around the six-month AIDS phobia restriction on emotional damages.” Plaintiff Helen Ornstein worked part-time in the Bellevue emergency room for 27 years, according to the decision. On Sept. 1, 2000, while she was rolling an AIDS patient over to clean him, a needle punctured her double-layer of gloves, entering and exiting her thumb 1 1/2 inches apart. The needle was covered in fresh blood, which — because the patient had stopped taking his medications — carried an exceptionally high viral load. Ornstein was treated with anti-viral medication and consistently tested negative for HIV over the next year. Nonetheless, she continued to fear contracting the disease. Suffering from panic attacks, she quit her primary job. She feared leaving the house, sleeping or speaking with people. She saw a psychiatrist, who prescribed Valium and Prozac. In May 2001, Ornstein filed a claim against the Health and Hospitals Corporation, claiming that Bellevue and a doctor negligently left two infected needles in the patient’s bed. She sought damages for emotional injuries, including her fear of catching AIDS, post-traumatic stress and recurrent major depressive disorder. “Citing prevailing legal authority which is based on the medical consensus that it is highly unlikely that a person who tests HIV negative more than six months after a potential exposure will become infected,” the defense moved to dismiss “any claim for emotional damages sustained more than six months after plaintiff’s thumb was pierced with the needle,” Marlow wrote. In January 2004, Manhattan Supreme Court Justice Sheila Abdus-Salaam denied that motion. The 1st Department reversed Tuesday. “The relatively new theory of tort liability for negligent infliction of emotional distress based on a plaintiff’s exposure to HIV and concomitant fear of contracting AIDS presents a unique problem,” Marlow opined. “The question we decide today is whether the unchallenged six-month limitation to recovery based on an AIDS phobia claim equally applies to plaintiff’s alleged separate and distinct claim for post-traumatic stress disorder and emotional damages, which she asserts are unrelated to any claim.” The 1st Department, addressing the issue for the first time, held that the six-month limitation indeed does apply to the plaintiff’s post-traumatic stress disorder claim. Using a “reasonableness” standard, New York limits damages in AIDS-phobia cases to the six-month period following exposure, Marlow noted, citing the 2nd Department decision Brown v. New York City Health & Hosp. Corp., 225 AD2d 36. “The rationale for imposing a corresponding limitation on AIDS phobia claims is the medical consensus that 95 percent of HIV carriers will test positive within six months of acquiring it,” Marlow wrote, citing Brown. In the present case, the court extended that rationale to emotional damages other than AIDS phobia. “[T]he fear of AIDS and post-traumatic stress disorder are so intertwined that the two emotional claims cannot be distinguished,” Marlow concluded. “Accordingly, if it is reasonable to limit damages for an AIDS phobia claim to six months … it is reasonable to similarly restrict emotional damages stemming from the same initial incident.” Justices John T. Buckley and Peter Tom joined the majority. Justices James M. Catterson and Luis A. Gonzalez dissented, in a 14-page opinion by Catterson. Catterson called Brown, the case on which the majority decision relied, “a departure from common law principles of tort liability that is more properly left to the State Legislature.” “Genuineness [of mental distress] is a question of fact, not a matter of law,” he wrote. “By contrast, the objective and reasonable standard embraced today by the majority rejects this essential subjective component.” Lenore Kramer of Kramer & Dunleavy represented Ornstein at arguments before the 1st Department. Elisa Barnes of the Law Office of Elisa Barnes wrote the appellate brief. Kramer said Ornstein will appeal. Julie Steiner and Barry P. Schwartz represented New York City. “The court adopted an objective standard in light of the many misconceptions that surround the disease,” Steiner said. “It was imperative to limit plaintiffs to emotional damages in the first six months [when] it’s clear that these emotional damages are just an extension of their initial fear of contracting AIDS.”

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