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Sharp Disagreement on HIV Liability

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Manhattan nurse’s non-infectious needle-stick claim limited to six months of anxiety

A sharply divided five-judge panel of the New York Appellate Division’s First Department in Manhattan voted 3-2 to follow the lead of Brooklyn’s Second Department and set a six-month limit on claims for emotional injury arising from exposure to HIV.

The January 3 ruling, in an opinion by Justice George D. Marlow, drew a sharp dissenting opinion from two members of the court, written by Justice James M. Catterson, who criticized the Second Department’s approach as unjustifiably limiting the jurisdiction of the court to compensate HIV-related injuries, and rejected as inadequately nuanced his colleagues’ interpretation of the plaintiff’s claims.

The lawsuit by Helen Ornstein against the New York City Health and Hospitals Corporation originated in an incident at Bellevue Hospital in September 2000. Ornstein had worked as a day nurse at Bellevue and other hospitals in the city for the past 27 years and was providing care to a “critically ill patient diagnosed with AIDS.” While helping turn over the patient, she sustained a puncture wound from a hypodermic needle stuck in the mattress. She immediately received anti-retroviral therapy, her initial doses being increased due to concern about the high level of HIV in the patient’s blood, and suffered side effects from the medication for several months. However, Ornstein never tested HIV-positive.

She claims, nonetheless, to have sustained serious permanent emotional injury from the incident. Her fear of future needle-stick injuries became so great that she was diagnosed with post-traumatic stress disorder and has been psychologically unable to return to working in patient-contact settings.

Ornstein sued the city agency and the patient’s doctor for negligence, seeking compensation for her emotional injuries. The defendants, relying on the Brooklyn decisions limiting emotional distress claims to the first six months from exposure to the virus, filed a pre-trial motion to limit damages accordingly.

Countering that motion, Ornstein argued that she was not claiming compensation merely for fear of contracting AIDS as a result of the incident, but also for the post-traumatic stress disorder, which she claimed was a distinct claim of a permanent injury, and not the transient emotional distress associated with a fear that she had already acquired the virus.

Justice Sheila Abdus-Salaam, the trial judge, denied the defendants’ motion, finding that Ornstein’s claim went beyond the traditional “AIDS phobia” claim and should not be subject to the six-month limitation. The defendants appealed.

Writing for the majority, Justice Marlow’s opinion seemingly fails to understand the distinctions that Ornstein was posing. Marlow characterized the post-traumatic stress disorder claim as an “end run” around the six-month rule. In an explanation drawn from the Second Department’s rulings, he noted the statistical proof that the likelihood of HIV being transmitted during a single needle stick incident was between three and five in a thousand, and that if somebody were positive there is only a five percent chance that he or she would not test positive at the six month interval from the time of infection.

Based on that statistical evidence, the court concluded that fear of having contracted HIV was no longer reasonable after six months, since the chances it was transmitted and would eventually show up through testing were so slight.

Thus, the majority followed the Brooklyn appeals court’s lead in imposing an objective test. Marlow noted that courts in some other jurisdictions have also imposed such limitations as support for this court’s approach. The opinion, however, drew a scornful response from Justice Catterson, whose dissenting opinion was joined by Justice Luis A. Gonzalez.

Catterson derided the Second Department approach by arguing that it was inappropriate for the court to hold that a five percent chance that somebody testing negative after six months might actually be infected was so insubstantial that it could not be a legitimate cause of continued emotional distress. Such questions, in his view, were factual issues to be submitted to juries, and compensation should not be ruled out by the court as a matter of law.

Even more significantly, he noted, the majority of the court had improperly rejected Ornstein’s distinction between the two kinds of injuries she was claiming. Most of her injury resulted not from any continuing fear that she had been infected, but rather from the mental block she now had against providing direct patient care due to an overriding fear of encountering a new needle stick injury in the future. Post-traumatic stress syndrome is not the same as AIDS phobia, in Catterson’s view.

“The majority, without pointing to any medical or statistical evidence about the improbability of an ER nurse at Bellevue getting stuck by another contaminated needle, simply rejects, as a matter of law, any suggestion of an emotional distress claim that includes mental injury of a permanent, residual type,” Catterson wrote. “It asserts that ‘a claim for post-traumatic stress disorder is simply an end-run around the six-month AIDS phobia restriction’ and opines that allowing a claim beyond six months will simply render meaningless the six-month limitation on recovery.”

Catterson argued that the majority had departed from common law principles about what liability claims can be litigated.

“The ‘window of anxiety’ approach is nothing more than a recently-contrived ‘compromise between the harshness of precluding total recovery for the fear of AIDS and allowing a fearful plaintiff a windfall,’” he wrote, quoting from a law review article that was critical of the six-month window approach.

With the reversal of Justice Abdus-Salaam’s ruling on the motion, Ornstein is left only with her claim of up to six months of anxiety about the possibility of HIV infection, unless she can successfully appeal this ruling to the Court of Appeals, the state’s highest court, which has never ruled on this aspect of HIV-related liability.

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Updated 5:17 pm, July 20, 2018
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