Fear of AIDS' Award Vacated by Majority

Saturday, May 19, 2007 | 0

By Mark Fass

The Appellate Division, 1st Department's 3-2 decision to vacate a jury's $75,000 post-traumatic stress award in a "fear of AIDS" case has drawn a scathing dissent from Justice James M. Catterson.

Justice Catterson criticized the majority for adhering to a judicially created six-month limit for emotional damages in AIDS-phobia cases rather than allowing a jury to determine whether the plaintiff's distress was"genuine" or"substantial," as required by prior precedent.

"Traditional negligent infliction of emotional distress claims should not be limited by a judicially imposed reasonableness period that takes from the jury the determination of the extent of a plaintiff's damages," Justice Catterson wrote in his dissent in Sims v. Comprehensive Community Development Corp., 111.

"Given its departure from common-law principles of tort liability, the six-month rule should be discarded as meaningless," he said."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.'"

Justice E. Michael Kavanagh joined the dissent. Justices Peter Tom, Richard T. Andria and David Friedman formed the majority. Vanessa Sims was 33 when she pricked herself with a used needle in a wall-mounted disposal container while working as an extern at the Bronx's Burnside Medical Center in July 1999. The needle had been used to draw blood from an HIV-positive patient.

Although she never contracted HIV, Sims and her husband sued her nursing school, Ultrasound Diagnostic School, and the clinic's owners, Comprehensive Community Development Corp., among others, arguing that they failed to provide proper supervision. The Simses claimed that the trauma scared Sims away from the health care profession, damaged their sexual relationship and caused her to suffer from post-traumatic stress disorder.

A Bronx jury awarded Sims $790,000, apportioning 25% of the responsibility to her school and 75% to the clinic's owners. (The school settled with Sims prior to entry of the judgment.)

The award included $650,000 for Sims' fear of contracting AIDS during the six months following the accident and $100,000 for the post-traumatic stress she suffered after that six-month period.

The clinic's owner, the Comprehensive Community Development, appealed.

The 1st Department modified the judgment, remanding the case for a new trial on damages unless Sims agreed to a reduction of the clinic's share of the damages for the stress she incurred in the first six months, to $250,000 from $487,500.

"We take this action based on our finding that, on this record, the jury's award for AIDS phobia during the six-month period at issue deviates materially from what would be reasonable compensation," the majority wrote in its unsigned, four-page decision.

The panel also vacated on legal grounds the clinic's three-fourths share of the $100,000 award for the post-traumatic stress she suffered beginning six months after the accident, citing the 2006 decision Ornstein v. New York City Health & Hosps. Corp., 27 AD3d 180.

"In Ornstein," the majority wrote,"this Court [held] that such damages are not recoverable in a case where the plaintiff has never tested positive for HIV infection."

The Ornstein panel called unreasonable an ongoing fear of contracting AIDS due to the"unchallenged scientific and statistical evidence indicating that 95% of HIV carriers will test positive for the virus within six months of acquiring it."

Question of Fact

In his dissent, Justice Catterson criticized the logic in Ornstein, in which he also had dissented.

"The question arises as to what authority, legal or medical, allows any court rather than a jury to determine as a matter of law, that a plaintiff's fear of belonging to that 5% group is not genuine, or even reasonable," he wrote.

He also called the six-month limit espoused in Ornstein, and set forth in its antecedent, the 2nd Department case Brown v. New York City Health and Hospitals Corp., 27 AD3d 180,"a departure from common-law principles of tort liability that is more properly left to the State Legislature."

The law controlling recovery for emotional distress in cases lacking physical injury, he wrote, was aptly reiterated in the 1977 Court of Appeals decision Howard v. Lechner, 42 NY2d 109.

In Howard, the court stated that a plaintiff may recover for emotional harm so long as it is"genuine, substantial and proximately caused by the defendant's conduct," Justice Catterson wrote. Subsequent decisions held that a"guarantee of genuiness" could be found in the"circumstances of the case," and that the"special circumstances" of a case served a"guarantee that the claim [was] not spurious."

"Genuineness, then, is clearly and appropriately a question of fact, not a matter of law," Justice Catterson concluded. He therefore called on the court to abandon its"slavish adherence" to the "illogic" of Brown, and its adherence to a six-month "window of recovery" in "AIDS phobia" cases.

The majority made no rebuttals to Justice Catterson's 11-page dissent, other than to note in a footnote a "logical error" in his interpretation of statistics regarding the fallibility of HIV testing.

Jay L. Feigenbaum of Finz & Finz in Jericho represented Sims. Feigenbaum said his client is considering her options.

"I think what the court did is upheld a judicial interpretation of how long you can be ill or sick," Feigenbaum said.

Anthony F. DeStefano and Caryn L. Lilling of Mauro Goldberg & Lilling in Great Neck represented the defendants.

"There really hasn't been any conversation on what is an appropriate level of compensation for six months of pain and suffering for fear of AIDS," DeStefano said.

Mark Fass can be reached at mfass@alm.com . This column first appeared in the New York Law Journal.

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