K.A.C. v. Benson

Page 553

527 N.W.2d 553

63 USLW 2500

K.A.C., et al., Plaintiffs T.M.W., Respondent R.E.S., et al., Plaintiffs, v. Dr. Philip D. BENSON, et al., Petitioners, Appellants.

Nos. C4-93-1328, C5-93-1306, C6-93-1203.

Supreme Court of Minnesota.

Feb. 10, 1995.

Syllabus by the Court

1. A plaintiff who fails to allege actual exposure to HIV is not, as a matter of law, in personal physical danger of contracting HIV, and thus is not within a zone of danger for purposes of establishing a claim for negligent infliction of emotional distress.

2. Where defendant complied with restrictions imposed by the Minnesota Board of Medical Examiners and did not in fact place plaintiff at any reasonable risk of contracting the AIDS virus, plaintiff failed to establish that defendant's conduct was either intentional or reckless for purposes of a claim for intentional infliction of emotional distress.

3. Where plaintiff did not allege that defendant performed a different medical procedure from that to which she consented, and defendant's conduct did not significantly increase the risk plaintiff would contract HIV, plaintiff's claim for battery fails.

4. Where an undisclosed, minuscule "risk" of HIV exposure did not materialize in harm to plaintiff because plaintiff tested negative for the HIV antibody, plaintiff cannot establish a claim for negligent nondisclosure.

5. Where plaintiff cannot establish injury, plaintiff has no basis for recovery under the Consumer Fraud Act, Minn.Stat. § 325F.69, subd. 1 (1992).

William M. Hart, Christopher J. Schulte, J. Richard Bland, Barbara A. Zurek, Meagher & Geer, Minneapolis, for appellants.

James C. Wicka, Jeffrey M. Ellis, Messerli & Kramer, Minneapolis, for respondent.

Judy Emmings, John W. Carey, Sieben, Gross, Von Holtum, McCoy & Carey, Ltd., Fairfax, for plaintiff K.A.C., et al.

Robert K. Randall, Randall & Parmater, Ltd., Minnetonka, for plaintiffs R.E.S., et al.

Heard, considered, and decided by the court en banc.

OPINION

STRINGER, Justice.

Plaintiff-respondent, T.M.W., brought this action against Dr. Philip Benson and the Palen Clinic for emotional damages she allegedly suffered upon learning that Dr. Benson had performed upon her two gynecological procedures while Dr. Benson was infected with the human immunodeficiency virus (HIV) ¹ and was suffering from open sores on his hands and forearms. We reject plaintiff's claims and hold that a plaintiff must allege actual exposure to HIV in order to establish a claim for emotional damages resulting from a fear of contracting AIDS.

Over 50 former patients, including T.M.W., filed complaints against defendants asserting various claims. The district court filed a series of orders resulting in summary judgment in favor of defendants because plaintiffs failed to allege actual exposure or direct contact with Dr. Benson's HIV-infected blood or body fluids. In its unpublished opinion, the court of appeals affirmed in part and reversed in part, holding that a genuine issue of material fact existed as to whether Dr. Benson placed his patients in a "zone of danger." ² K.A.C. v. Benson, No. C6-93- 1203, C5-93-1306, C4-93-1328, 1993 WL 515825 (Minn.App. Dec. 14, 1993). The court of appeals reversed the district court with respect to all of T.M.W.'s claims, permitting T.M.W.'s claims for negligent and intentional infliction of emotional distress, battery, negligent nondisclosure, and consumer fraud. The court of appeals also limited as a matter of law plaintiffs' emotional distress damages to "a reasonable window of anxiety" between the time they learned of Dr. Benson's illness until they received negative HIV test results. This appeal followed.

While this matter was pending in this court, all but one of the plaintiffs ultimately settled their claims against defendants; only plaintiff T.M.W. remains. K.A.C. v. Benson, No. C6-93-1203, C5-93-1306, C4-93-1328, 1994 WL 667662 (Minn. Oct. 14, 1994) (order dismissing remaining claimants). We reverse the decision of the court of appeals, and reinstate summary judgment in favor of defendants.

Dr. Philip Benson was a family practitioner at the Palen Clinic and the Palen Heights Clinic from 1980 until June 1991. Early in 1989, Dr. Benson began losing weight while following a weight control program. In March 1989, he developed a series of skin conditions on his face, hands, arms, and head. Initially, Dr. Benson self-treated these conditions. In early 1990, Dr. Benson consulted a dermatologist who diagnosed a variety of skin disorders, including vitiligo, alopecia areata, and folliculitis.

In June 1990, Dr. Benson developed nodular lesions on his hands and forearms. In September 1990, Dr. Benson consulted another dermatologist who diagnosed the lesions as exudative dermatitis (Mycobacterium marinum ) and ordered an HIV test. Dr. Benson tested HIV seropositive. Dr. Benson's dermatologist reported Dr. Benson's HIV seropositive status to the Minnesota Department of Health, and in October 1990 Dr. Benson met with the Minnesota Board of Medical Examiners (Board) regarding his medical practice. At that time, the Board had no formal guidelines regarding HIV seropositive health-care providers. ³ The Board advised Dr. Benson to wear two pairs of gloves when caring for patients and to refrain from performing surgery. He complied with the Board's requirements, and voluntarily ceased delivering babies.

After meeting with the Board, Dr. Benson performed two gynecological exams on T.M.W. during the time he suffered from dermatitis: the first in late October 1990, the second in early January 1991. By the end of 1990, Dr. Benson's dermatitis condition had significantly healed.

After Dr. Benson performed the second gynecological exam on T.M.W. in January 1991, Dr. Benson again met with the State Board of Medical Examiners. ⁴ As a result of that meeting Dr. Benson entered into a Stipulation and Order with the Board, restricting him from delivering babies, from performing surgery, or performing invasive procedures using a sharp instrument in a patient's body cavity.

In May 1991 the State Board of Medical Examiners and the Minnesota Department of

Health contacted 336 patients on whom Dr. Benson performed one or more invasive procedures while gloved, but at a time when he suffered from exudative dermatitis. The letter, dated June 17, 1991 and signed by Dr. Benson, stated in relevant part as follows:

Under most conditions there would be no reason to alert you [of Dr. Benson's AIDS diagnosis] since current recommendations suggest that physicians infected with the AIDS virus pose little or no risk to their patients. However, between May 1, 1990 and February 21, 1991, I had a skin rash on my hands and fingers. I am sending you this letter because there is a very minimal possibility that you were exposed to the AIDS virus through body fluids from this rash during certain medical procedures. At the time that I had this rash, I did not realize that there may have been any risk to you because I was wearing gloves. I am now aware that even with gloves, an extremely minimal risk still existed.

Based on the most current information about AIDS and the opinions of many experts, the likelihood that you have been infected with the AIDS virus from this type of exposure is extremely low. However, for your peace of mind and absolute safety, I am recommending that you be tested for antibody to the AIDS virus. This test will tell us whether or not you are infected with the AIDS virus. Because people generally have no symptoms when they first become infected with the AIDS virus, it is important for you to be tested. * * * *

(Letter from Dr. Benson of June 17, 1991) (emphasis in original). Following receipt of Dr. Benson's letter, over 50 former patients commenced individual actions against Dr. Benson and the Palen Clinic for various claims. None of the 325 patients tested HIV seropositive. ⁵

Dr. Benson ceased his medical practice in June 1991. He died of AIDS-related complications in September 1991.

T.M.W.'s Claims

a. Negligent Infliction of Emotional Distress

The first issue presented on appeal is whether plaintiff must allege actual exposure to the body fluids of an HIV-infected individual to recover emotional distress damages. To establish a claim for negligent infliction of emotional distress, plaintiff must show she: (1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations. Stadler v. Cross, 295 N.W.2d 552, 553 (Minn.1980). T.M.W. argues that although she cannot prove actual exposure to HIV occurred, it is possible she was exposed to a body fluid transfer. Thus, T.M.W. in effect alleges her proximity to Dr. Benson's HIV-infected body fluids put her within the "zone of danger" of physical impact. She offers the affidavit of Dr. Sanford Kuvin, who would testify that gloves are inadequate protection against HIV transmission. We are not persuaded by this argument, and hold, as a matter of law, for the reasons stated hereafter, that plaintiff was beyond the "zone of danger" for purposes of a claim of negligent infliction of emotional distress.

In Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N.W. 1034 (1892), this court first ruled that actual physical impact is not necessary to sustain a claim for emotional distress damages. There, plaintiff suffered a miscarriage after the cable car on which she was a passenger narrowly avoided a collision with another cable car. Id. The court adopted the "zone of danger" test, noting the impending cable car collision "seemed so imminent, and was so nearly caused, that the incident and attending confusion of ringing alarm-bells and passengers rushing out of the car caused to plaintiff sudden fright and reasonable fear of immediate death or great bodily injury * * *." Id. The zone of danger test has remained the law in Minnesota for over 100 years.

We adhered to the ...