The New York courts have previously determined that nurses who have been negligently exposed to the HIV virus through a scientifically accepted method of transmission of the virus may recover damages for emotional distress because of the fear of developing AIDS. But one appellate court has limited the time period for which one can recover such damages to 6 months after the exposure because the scientific evidence suggests that 95% of HIV-positive individuals will test positive within six months after exposure. Thus, an individual exposed to the virus can be reasonably assured that he or she is free of infection if tests conducted six months after the exposure are negative (see, Brown v New York City Health and Hosps. Corp., 225 AD2d 36 [2d Dept 1996]).
However, the Court of Appeals relaxed this time frame yesterday in Ornstein v New York City Health & Hosps. Corp., 2008 NY Slip Op 01027. The facts in that case were as follows. On September 1, 2000, while working as a nurse on a per diem basis at Bellevue Hospital in Manhattan, plaintiff and a nurse’s aide began bathing a critically-ill patient suffering from AIDS. As she was turning the patient, plaintiff was stuck in the thumb by a hypodermic needle that had been left in the patient’s bed by an intern. Because the needle contained blood, plaintiff was immediately treated with anti-viral medications for potential HIV exposure. She remained on these medications for two months, suffering side effects that continued for several months thereafter including nausea and neuropathy in her hands and feet. Plaintiff also promptly commenced a regimen of periodic HIV testing. The plaintiff was tested every three months for a period of two years following her exposure but consistently tested negative for infection with HIV. She commenced an action against the new York City Health and Hospitals Corporation alleging negligent infliction of emotional distress.
Relying on Brown, the defendants argued that plaintiff should be restricted to presenting the jury proof that she experienced mental anguish for only a period of six months following the needle-stick incident.
However, the Court of Appeals rejected a bright line 6 month rule. First, the Court stated that the 6 month rule did not make sense in this case because the plaintiff was never advised that her risk of testing positive in the future would dramatically decrease, if not virtually cease, once she tested negative at the six-month juncture. She was also unaware of this fact from her own medical training. In fact, the plaintiff testified that her fear of contracting HIV from the needle-stick incident continued until she tested negative in June 2002, about a year-and-a-half after exposure. In addition, the Court stated that the 6 month rule established by Brown did not account for the fact that a plaintiff exposed to HIV may suffer injuries that are distinct from the fear of contracting the virus. For instance, the plaintiff offered medical proof that she continued to suffer from post-traumatic stress disorder even after her concern that she had contracted the virus was alleviated. Plaintiff testified that she lost income because she was never able to return to per diem hospital work after the incident due to her fear of similar future exposure incidents. In addition, while her HIV status was uncertain, she was unable to engage in direct patient care but had to confine her duties to office work. She stated that, after it was determined that she had not contracted the virus, she continued to suffer from post-traumatic stress disorder and that this condition was a contributing factor in her decision to permanently change the nature of her employment from direct patient care to teaching. The Court found that if this evidence was believed, a rational jury could find that plaintiff’s psychiatric condition and resulting loss of income were directly related to the exposure incident, warranting monetary recovery. The Court noted that the defendant was still free to introduce scientific and medical evidence at trial that the plaintiff’s fear of AIDS was unreasonable at some point, but it was simply unwilling to adopt the bright line 6 month rule. Thus, the Court ordered a new trial on damages.