Woman pricked by needle used on AIDS patient may pursue emotional distress claim past six-month incubation period

Law Reporter, May 2004

Ornstein v. New York City Health & Hosp. Corp., No. 110914/01 (New York County Sup. Ct. Jan. 5, 2004) (unpublished).

An emergency room nurse who was pricked by a needle used on an AIDS patient may maintain an action for negligent infliction of emotional distress even though the sixmonth period in which the virus would have developed has passed, a state trial court held.

Here, Ornstein, an emergency room nurse, was treating an AIDS patient. When she turned him over in his bed, a needle lying on the mattress punctured her thumb. She immediately began taking strong doses of antiviral medication because the patient had particularly high levels of the virus in his blood. Ornstein underwent several HIV tests over the following months, which were all negative. She subsequently suffered posttraumatic stress disorder and was unable to return to work. She sued the hospital, alleging emotional distress. Defendant moved to limit plaintiff's claim to the six months after she was exposed to the virus, contending she had no reasonable fear of contracting HIV after that time because the virus develops within six months of exposure.

Denying defendant's request, the court held that the sixmonth incubation period is irrelevant because plaintiff is alleging emotional distress, not a fear of contracting AIDS. The court distinguished the cases relied upon by defendant from the present case because those cases involved plaintiffs who were claiming "AIDS phobia," but had no reasonable fear of contracting HIV at the time of the suit. Here, however, plaintiff's claim is based on the psycho-logical harm she continues to suffer even though she knows she does not have HIV.

Noting that previous appellate cases have held that a plaintiff cannot recover damages for posttraumatic stress disorder after the six-month period, the court declined to follow those cases. Instead, the court followed a different appellate case, Fosby v. Albany Mem'l Hosp., 675 N.Y.S.2d 231 (App. Div. 1998), which held that a plaintiff could pursue an emotional distress claim where "there exists an especial likelihood of genuine and serious mental distress arising from special circumstances."

In the instant case, the court said, plaintiff was aware that the patient was critically ill and suffering horribly when she was struck by his needle. Her psychiatrist noted that she continued to suffer chronic posttraumatic stress disorder even a year after the incident. Thus, plaintiff has provided evidence to support a conclusion that her claim is not spurious and should be allowed.

Plaintiff's Counsel

*Denise M. Dunleavy, New York, N.Y.

*Lenore Kramer, New York, N.Y.