Plaintiff must prove HIV exposure to recover damages for fear of contracting AIDS

Law Reporter, Dec 1998

Plaintiff must prove HIV exposure to recover damages for fear of contracting AIDS.

Majca v. Beekil, _ N.E.2d _, Nos. 83677, 1998 WL 671770 (Ill. Oct. 1,1998).

The Supreme Court of Illinois held that a plaintiff must prove actual HIV exposure in order to recover damages for fear of contracting AIDS. However, the court also held that a plaintiff need not demonstrate a likelihood of developing AIDS in the future to state a claim for fear of contracting AIDS.

Here, a woman cut her hand on a scalpel discarded by a physician who later died of AIDS. She sued the doctor's estate, alleging negligent infliction of emotional distress based on her fear of contracting AIDS. The trial court granted defendant summary judgment, finding plaintiff had failed to demonstrate HIV exposure or a likelihood of developing AIDS in the future.

In a consolidated case, six dental patients were told a dental student who had provided treatment to them was HIV-positive. They sued the dental school and student, seeking damages for their fear of developing AIDS. The trial court dismissed their complaint, finding plaintiffs had failed to allege actual HIV exposure or a likelihood of developing AIDS in the future.

An appellate court affirmed both cases.

Affirming, the state high court noted state law permits recovery for claims based on fear of contracting a future illness only when there has been actual exposure to a harmful agent. Without proof of actual HIV exposure, the court said, a claim for fear of contracting AIDS is too speculative to be legally cognizable.

The court gave several reasons in support of its actualexposure requirement. First, because HIV is the cause of AIDS, a person lvill not develop AIDS without having been exposed to HIV. Second, the requirement prevents individuals from recovering damages when their fear of contracting AIDS is based on a lack of information or inaccurate information about HIV transmission. Finally, the actual-exposure requirement is an objective standard that will help ensure stability, consistency, and predictability in the disposition of fear-of-contracting AIDS claims.

The court rejected defendants' argument that plaintiffs must show a likelihood of developing AIDS in the future to recover damages. The court noted there is a period of time when the exposed individual will not know what the future holds. During this "window of anxiety," an indiNidual's fear of contracting AIDS may be reasonable. However, once in receipt of reliable HIV-negative test results, the court said, an individual's fear of contracting AIDS would no longer be reasonable.

[ Comment: For other cases alleging fear of contracting AIDS, see Madrid v. Lincoln County Medical Ctr., 909 P.2d 14 (N.M. Ct. App. 1995), 39 ATLA L. Rep. 202 (June 1996); Brzoska v. Olson, 668 A.2d 1355 (Del. 1995), 39 ATLA L. Rep. 72 (Mar.1996); Faya v. Almaraz, 620 A.2d 327 (Md.1993), 36 ATLA L. Rep. 295 (Oct. 1993); and Johnson v. West Virginia Univ. Hosps., 413 S.E.2d 889 (W. Va. 1991), 35 ATLA L. Rep. 185 (June 1992).

*Alexander A. Wold Jr. and Walter M. Hart III, both of Albuquerque, N.M., represented plaintiff in Madrid. *Marla Rosoff Eskin and *Thomas C. Crumplar, both of Wilmington, Del., represented plaintiffs in Brzoska. Plaintiffs in Faya were represented by Harry B. Siegel and Joel M. Abramson, both of Columbia, Md.; and *Jonathan Schochor, *Philip C. Federico, and *Kerry D. Staton, all of Baltimore, Md. *Clark B. Frame, *Wesley W. Metheney, and *J. Michael Benninger, all of Morgantown, VV. Va., represented plaintiff in Johnson. ]

[Documents in Madrid, Brzoska, Faya, and Johnson are available through the Court Documents section at p. 403, courtesy of plaintiffs' counsel.]