In the five years after Terry Hedgepeth was diagnosed as HIV-positive in 2000, he felt like a man with nothing to live for. Hedgepeth, according to court filings, grew depressed, lost his job and had suicidal thoughts. He used drugs and engaged in other risky behavior.
Only he wasn’t HIV-positive. Due to a human error, according to court documents, his results form was incorrectly filled out. He sued the Whitman-Walker Clinic for medical malpractice in 2005 in District of Columbia Superior Court.
Hedgepeth and Whitman-Walker (now called Whitman-Walker Health) agreed to a confidential settlement in early August, ending the lengthy legal saga. But D.C.-area lawyers who do malpractice work say they expect Hedgepeth’s case to have long-lasting effects on how similar cases play out in the future.
It’s been a little more than a year since the District of Columbia Court of Appeals issued an opinion that not only changed the course of Hedgepeth’s case, but also the standards for claiming emotional distress. In a 63-page ruling, the en banc court altered precedent dating back to 1990, which held that plaintiffs could only claim damages for negligent infliction of emotional distress if they were within a “zone of physical danger.”
Senior Judge Vanessa Ruiz, writing for the court, found that the “zone” test was too limiting in some cases. She wrote that there are special relationships, especially the doctor-patient relationship, that can carry an obligation to care for a person’s emotional well-being. When it comes to those relationships, she wrote, claims alleging a breach of care shouldn’t be limited by whether there was a risk of physical harm.
Hedgepeth’s lawyer, Washington solo practitioner Jonathan Dailey, said the opinion was a needed expansion of tort law. “Wherever you have a party who puts himself out as having a particular skill…you put your trust in their hands,” he said. “If they do something that falls below the standard of care and you suffer a severe emotional distress, you should have a cause of action.”
Lawyers who handle malpractice cases on both sides of the courtroom say the new precedent has already affected how they handle cases. “It definitely changes the way we plead complaints,” said Washington personal-injury lawyer Wayne Cohen of Cohen & Cohen. “Certain cases that we previously would not have brought, we have brought.”
Jackson & Campbell attorney Alfred Scanlan Jr., who briefly represented Whitman-Walker in Hedgepeth’s case, said he hasn’t noticed more cases being filed so far, but he has seen plaintiffs make claims that might not have been viable in the past. “People are beginning to try to cite [the Hedgepeth opinion] to give themselves extra cushion,” he said.
Scanlan added that he’s had to take the decision into account when drafting motions for summary judgment, but those cases haven’t progressed far enough to know how much of a difference the new standard will make. “My fear when it first happened was, ‘Oh no, it’s going to make it more difficult for us,’” he said. “It’s too early to tell if my pessimism was warranted.”
Hedgepeth visited Whitman-Walker in December 2000 after learning his girlfriend was HIV-positive, according to court filings. A blood test showed that he wasn’t, but his results form mistakenly indicated that he was.
He was tested again in 2005 and learned that, in fact, he wasn’t HIV-positive. A treating physician said Hedgepeth cried and seemed like “a man being released from prison,” according to court filings. He sued Whitman-Walker later that year.
In January 2007, Whitman-Walker won summary judgment. A three-judge appeals court panel upheld the decision in October 2009, finding that Hedgepeth failed the “zone of physical danger” test. But Ruiz, a member of the panel, issued a concurring opinion saying that while the court was bound by past precedent, it was time for a full sitting of the court to reconsider the issue.
The en banc court heard arguments in June 2010. The court issued its decision in June 2011, reversing the dismissal of the case. A trial was scheduled to begin earlier this month, but on August 8, the week before, the parties notified the court that they had reached a settlement. Whitman-Walker executive director Don Blanchon declined to discuss whether the health center had made policy or practice changes in light of the case, except to say that “we 100 percent abide by the standard of care.” Hedgepeth, through Dailey, declined to comment.
Washington solo practitioner Alfred Belcuore, who represented Whitman-Walker on appeal, said in an email interview that while he was disappointed, he was heartened by limits the court laid out: that there has to be a special relationship; negligence has to be “especially likely” to cause serious emotional or mental distress; and the distress has to be “serious” and “verifiable.”
Not enough time has passed to gauge the ruling’s full effect, Belcuore said, “[b]ut the situations in which the modified rule might be applicable are exceptional, and so there should not be any ‘floodgate’ of litigation.”
Cohen agreed that the court took pains to state that they were adopting a “limited” rule. Still, he said, “it’s one step forward, but it’s a huge step.”
George Mason University School of Law Professor Michael Krauss said the District is in line with a growing number of state courts that are expanding the grounds for emotional-distress claims. He said he expected to see an uptick in medical malpractice cases in the District and, as a result, higher malpractice insurance premiums for local health care providers.
Krauss said that while the court mostly couched its opinion in terms of the doctor-patient relationship, he could envision the special-relationship requirement applying to other fields, including the law. For example, he said, if a lawyer negligently gave a client bad information in a case with particular emotional heft, such as a child custody case, the Hedgepeth opinion might be relevant.
Cohen said he expects to see more cases, although it may take some time for that to happen as lawyers figure out the limits of the new rule. “You drop a rock in a calm body of water, you’re going to see the big splash immediately, and that’s the opinion,” he said. “Then the ripples go far and wide, but that takes a while.”
Phil Goldberg, a partner at Shook, Hardy & Bacon and of counsel to the American Tort Reform Association, said the decision likely opened the door to future court battles over how broadly or narrowly judges can apply it. “There will be people testing the limits of this case and trying to expand those relationships and expand those circumstances,” he said. “It’s incumbent on the courts to keep this ruling true to its core.”
Dailey said he hadn’t taken any new cases that he couldn’t have brought before the Hedgepeth decision, but that it was only a matter of time before he does. He has supported a broader definition of special relationship to include cases where there’s a fiduciary relationship, from lawyers and clients to stockbrokers and portfolio-holders. “If there’s a fiduciary relationship, a cause of action should be recognized,” he said. “I intend to test it if I get a case.”
Contact Zoe Tillman at email@example.com.