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13 Health Law. 11 (2000-2001)
Actual Exposure or Reasonableness - Policy Issues Drive the Ongoing Debate over What Standards Should Govern the Recovery of Emotional Distress Damages for Fear of Contracting Infectious Disease

handle is hein.journals/healaw13 and id is 145 raw text is: ACTUAL EXPOSURE OR REASONABLENESS? POLICY ISSUES DRIVE THE ONGOING DEBATE OVER WHAT STANDARDS SHOULD GOVERN THE RECOVERY OF EMOTIONAL DISTRESS DAMAGES FOR FEAR OF CONTRACTING INFECTIOUS DISEASE Thomas A. Delaney Sedgwick, Detert, Moran & Arnold Irvine, CA Introduction During a routine visit to your family doctor, your hand is stuck with a syringe protruding from a drawer full of magazines. As you attempt to report the incident, the syringe is removed and discarded. Apologetic, your doctor can provide no information about the prior use of the needle or the patient on which it was used. He does, however, recommend that you obtain a series of blood tests since he recently treated patients afflicted with infectious disease, including Acquired Immune Deficiency Syndrome. Should you be fearful of contracting an infectious disease? Would such fear or anxiety be reasonable under these circumstances? Should you be able to recover damages for your emotional distress? Answers to these questions are the subject of a continuing debate over what standard should govern claims of emotional distress damages for fear of contracting infectious disease. While early cases generally held that negligent exposure to an infectious or contagious disease was actionable provided that the feared disease actually developed,' today, a majority of jurisdic- tions adhere to the actual exposure test with or without proof of an accom- panying physical injury.' The California rule, which requires that, absent physi- cal injury, a plaintiff prove that it is more likely than not that he or she will contract the disease, falls within the purview of the actual exposure test.' A minority of courts apply a general reasonableness standard with some vari- ation.' In these cases, actual exposure and physical injury are mere factors considered in determining whether a plaintiff's claim for fear of contracting an infectious disease is reasonable under the circumstances. More recently, even courts which have adopted the minority view have begun to interject some greater indicia of reliability for deter- mining whether these emotional distress claims are reasonable under the circumstances of each case.' Now, more than ever, public policy considerations drive the debate over what standard is appropriate. Courts which require actual exposure to the feared disease rely upon traditional policy concerns, including protection against excessive litigation and specula- tive damages claims, as well as the preservation of resources to ensure the availability of funds to compensate those with valid emotional distress claims.6 These courts also have begun to express a desire to discourage claims based upon public misconceptions about infectious diseases, particularly AIDS, and to counteract the general ignorance and public hysteria about disease and the prejudice against those infected Courts adopting the reasonableness approach cite the desire to avoid harsh, unfair results which may occur when a plaintiff lacks the requisite information and resources to prove actual exposure.8 In addition, these courts seek to deter unreasonable conduct which, according to at least one court, would decrease the number of exposure incidents, and thereby serve the goal of promoting public health9 In sum, what a plaintiff is required to prove to recover emotional distress damages for fear of contracting infec- tious disease will vary by court and, more specifically, by those public policy considerations which prevail within a particular jurisdiction. Majority Rule - Actual Exposure Courts which have adopted the actual exposure test generally require both the presence of the disease-causing agent, whether a virus, carcinogen or other contamination source, and a scien- tifically accepted channel in mode of exposure or infection. Some courts consider allowing recovery without proof of exposure as purely speculative. Actual Exposure With Physical Injury Most courts which require actual exposure to the feared disease also require proof of an accompanying physi- cal injury. For example, in Poole v. Alpha Therapeutic Corp. ,12 plaintiff's husband, who suffered from hemophilia, contracted AIDS from the allegedly negligent manufacture of a blood factor, and died the following year. The plain- tiff alleged that, in the course of ordinary and marital relations with her AIDS-infected husband, she had been directly exposed to the virus which causes AIDS. However, the district court noted that plaintiff failed to allege any physical injury or illness and, and applying Illinois law, dismissed plaintiff's claim for emotional distress damages for fear of contracting the disease. continued on page 12 11

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