Unanimous D.C. High Court Changes Tort Rules, Allowing Emotional Distress Claim for Man Misdiagnosed as HIV+

Opening up an exception to its established rule that a person can't sue for emotional distress damages unless the defendant's action also placed the plaintiff in a "zone of danger" or actually caused physical injury, the unanimous en banc District of Columbia Court of Appeals ruled in Hedgepeth v. Whitman Walker Clinic & Mary Fanning, M.D., 2011 Westlaw 2586720 (June 30, 2011), that a man who was misdiagnosed as HIV+ and claims to have suffered severe emotional distress as a result can maintain a tort action against the clinic and the doctor who misinformed him about his HIV test result.

Terry Hedgepeth visited Whitman Walker Clinic on December 13, 2000, seeking HIV testing.  He told the intake worker at the clinic that he "thought he had HIV" because he "found out that his girlfriend was HIV-positive."  The intake worker then inappropriately wrote that Hedgepeth was HIV-positive in the file that was opened for him.  Blood was drawn for testing and sent to the lab, where it tested negative for HIV.  "However," wrote the court, "due to human error, a 'Client Lab Results' form prepared at the clinic mistakenly showed that appellant tested positive for HIV."  Then Dr. Fanning told Hedgepeth that he had tested positive for HIV, relying on the mistaken entry in the file.  She also told him that he was asymptomatic and had a "normal" viral load. 

According to Hedgepeth's allegations, he believed he was HIV+ for the next five years. "He became depressed and began having suicidal thoughts, which resulted in his admission to the psychiatric wards at George Washington University Hospital in January 2001, and at Sibley Hospital in 2002.  He was prescribed several medications for depression.  He lost his job as a restaurant manager.  Appellant's relationship with his daughter also suffered as a result of his depression.  Appellant used illegal drugs, suffered from an eating disorder, and began to have sexual intercourse with a woman he knew to be HIV-positive 'because he was diagnosed with HIV and there was no reason for him to live.'  Appellant visited the Abundant Life Clinic in June 2005, where he was again tested for HIV.  The rest revealed that appellant was not HIV positive.  According to Dr. Abdul Muhammad, the treating physician at Abundant Life, upon hearing the negative test result, appellant wept and appeared to him as though he were 'a man being released from prison.'"  After Hedgepeth confirmed his negative HIV-status with another test at Johns Hopkins, he brought suit against Whitman Walker Clinic and Dr. Fanning, seeking damages for the emotional distress he had suffered.

The lawsuit was initially unsuccessful, because of the D.C. Court of Appeals' prior precedent of Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc).  In Williams, the court had established that under the tort law of the District of Columbia, a person suing for emotional distress damages who had suffered no physical injury as a result of the defendant's actions could not hold the defendant liable for the emotional distress unless the defendant's actions had placed the plaintiff in a "zone of danger" — that is, a situation where the plaintiff either suffered or was in danger of suffering physical injury.  This was actually a liberalization of prior law, which had required that plaintiff suffer an actual physical injury in order to claim emotional distress damages.  This reflected the traditional reluctance of common law judges to award damages for emotional distress, due to fears that such claims were easily feigned or exaggerated, and that allowing them would open up floodgates of litigation for hurt feelings.

Applying the Williams rule, the trial court and a panel of the D.C. Court of Appeals had granted summary judgment in favor of the defendants and against Hedgepeth.  However, in the Court of Appeals decision, Judge Ruiz had concurred suggested that the court should re-examine the District of Columbia's approach to this issue, noting that the draft of the Third Restatement of Torts had suggested an additional category for emotional distress claims which had already been embraced by some courts in other states.

The court agreed to reconsider the rule en banc, and in this new June 30 ruling, has agreed to adopt the Third Restatement rule.  Now writing for the en banc court, Judge Ruiz stated, "We adopt a rule — itself a limited one — that supplements the zone of physical danger test.  We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence."

The court concluded that this case fell within the new rule.  A person going to a clinic for HIV-testing is initiating a doctor-patient relationship to test and potentially treat for HIV infection, "an undertaking that would necessarily implicate the patient's emotional well-being and entailed a specially likely risk of serious emotional distress" if an incorrect positive test result was wrongly communicated to the plaintiff.  "Appellant has presented evidence supporting his allegations that appellees negligently misdiagnosed him as being HIV positive and that this misdiagnosis caused him to suffer serious emotional distress."

The court reversed the grant of summary judgment and sent the case back to the Superior Court for further proceedings.  The issue of whether the defendant's duty includes prevention of emotional distress is a question of law for the court, said the Court of Appeals, but the question whether the standard of care for medical practice has been violated is a factual question for the jury (or, if a jury is waived, the judge as a trier of fact), as are the questions of whether any malpractice is the proximate cause of the plaintiff's injury and, if so, what the damages should be.   One suspects in this case that Whitman Walker's insurer will make a settlement offer rather than try to defend this case at trial, since the plaintiff's account of what happened to him sounds likely to prompt a jury to award substantial damages.

Hedgepeth was represented before the Court of Appeals by Jonathan C. Dailey, with amicus support from the Trial Lawyers Association of Metropolitan Washington.  Alfred F. Belcuore represented Whitman Walker and Dr. Fanning, with amicus support from the Children's National Medical Center.  The decision joins a trend towards exposing health care providers to more liability, which would likely put upward pressure on malpractice insurance expenses.  Since it is a common law decision for the District, it seems an unlikely candidate for Supreme Court review, but might stimulate a legislative response, either directed to the substance of the rule or to cap potential damages.

Reading this case brings to mind the adverse experiences of many plaintiffs pursuing similar claims over the years since HIV testing first became available in the mid-1980s.  For many years, courts had stubbornly refused to award emotional distress damages for false positive reports, clinging to the common law rule that the D.C. Court of Appeals now abandons. 

One purpose of the new rule is to incentivize health care providers to take greater care about communicating such potentially emotionally devastating news to patients without taking care to ensure against incorrect results.  One wonders, for example, why Whitman Walker would communicate a positive result on an ELISA screening test without running a confirmatory test, as alleged in the complaint in this case.  Running a confirmatory test was standard practice long before 2000, when this incident occurred, so the failure to meet the appropriate standard of care seems blatant, if indeed the allegations are correct.

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