Faya v. Almaraz

MURPHY, Chief Judge. These companion cases present the important question whether a surgeon infected with the AIDS virus has a legal duty to inform patients of that condition before operating upon them and, failing that, whether a patient’s fear of having contracted the AIDS .virus from the infected surgeon constitutes a legally compensable injury where the patient has not shown HIV-positive status. I Central to an understanding of these cases are the nature of the acquired immune deficiency syndrome (AIDS) and its ⁴³⁹ relationship to the human immunodeficiency virus (HIV or “the AIDS virus”). First isolated and identified by scientists in 1983, HIV is a retrovirus that attacks the human immune system.

The virus invades host cells, notably certain lymphocytes, replicates itself, weakens the immune system, and ultimately destroys the body’s capacity to ward off disease. HIV’s presence is detected by a laboratory blood test for antibodies to the virus. The virus may reside latently in the body for periods as long as ten years or more, during which time the infected person will manifest no symptoms of illness and function normally. HIV typically spreads via genital fluids or blood transmitted from one person to another through sexual contact, the sharing of needles in intravenous drug use, blood transfusions, infiltration into wounds, or from mother to child during pregnancy or birth.

See Jonathan N. Weber & Robin A. Weiss, HIV Infection: The Cellular Picture, Scientific American, October 1988, at 100-109; William A. Haseltine & Flossie Wong-Staal, The Molecular Biology of the AIDS Virus, Scientific American, October 1988, at 52-62; Jay A. Levy, Human Immunodeficiency Viruses and the Pathogenesis of AIDS, 261 J.Am. Med.Ass’n 2997, 2998-3001 (1989); Thomas R. O’Brien et al., Testing for Antibodies to Human Immunodeficiency Virus Type 2 in the United States, Morbidity and Mortality Weekly Report, July 17, 1992, Vol. 41, No. RR-12; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:05-1:07, 1:24-1:34 (1991). AIDS, in turn, is the condition that eventually results from an immune system gravely impaired by HIV. Medical studies have indicated that most people who carry the virus will progress to AIDS.

AIDS patients by definition are profoundly immunocompromised; that is, they are prone to any number of diseases and opportunistic infections that a person with a healthy immune system might otherwise resist. AIDS is thus the acute clinical phase of immune dysfunction. Among the prevalent “AIDS-defining” diagnoses are Kaposi’s sarcoma, a rare cancer; pneumocystis ⁴⁴⁰ carinii pneumonia; cytomegalovirus infections of the eye and gastrointestinal tract; mycobacterium avium-intracellulare, a rare type of tuberculosis; and severe, prolonged yeast infections or herpes. See Institute of Medicine/National Academy of Science, Confronting AIDS: Directions for Public Health, Health Care and Research (1986) and Confronting AIDS: Update 1988 (1988); Robert R. Redfield & Donald S. Burke, HIV Infection: The Clinical Picture, Scientific American, October 1988, at 90-98; Donald Hermann & William Schurgin et al., Legal Aspects of AIDS §§ 1:10-1:23 (1991).

AIDS is invariably fatal. II Dr. Rudolf Almaraz, an oncological surgeon specializing in breast cancer with operative privileges at the Johns Hopkins Hospital (Hopkins) in Baltimore, knew himself to be HIV-positive, i.e. a carrier of the HIV virus, since 1986. On October 7, 1988, Almaraz performed a partial mastectomy and axillary dissection on Sonja Faya at Hopkins. He removed an axillary hematoma from Faya the following March.

On November 14, 1989, again at Hopkins, Almaraz surgically excised a benign lump from the breast of Perry Mahoney Rossi. The therapeutic outcome of these operations is not in dispute. On October 27, 1989, Almaraz was first diagnosed as suffering from cytomegalovirus retinitis, the eye infection signaling full-blown AIDS. That diagnosis was confirmed by a second ophthalmologist on November 17, 1989.

Thus, as well as knowing his HIV-positive status throughout the period in question, Almaraz knew that he had AIDS prior to the Rossi operation. Almaraz gave up his practice of medicine on March 1, 1990. He terminated his association with Hopkins in June of that year. He died of AIDS on November 16, 1990.

Faya and Rossi learned of their physician’s illness for the first time from a local newspaper on or about December 6, 1990, well over a year after Rossi’s operation and twenty ⁴⁴¹ months after Faya’s last contact with Almaraz. Both Faya and Rossi immediately underwent blood tests for the AIDS virus, which came back negative for both. Nevertheless, by December 11 Sonja Faya, Perry Mahoney Rossi, and her husband, Dennis T. Rossi (appellants), filed suit against Almaraz’s estate, his Maryland professional association business entity, and Hopkins (appellees) for compensatory and punitive damages. Ill In their separate actions filed in the Circuit Court for Baltimore City, the appellants, in a multiplicity of counts, alleged various wrongful acts by Dr. Almaraz and Hopkins. 1 Common to both complaints were counts alleging negligence, negligent failure to obtain the patients’ informed consent, fraud, and intentional infliction of emotional distress.

To these Faya added counts for negligent misrepresentation and breach of contract. The Rossi complaint, as amended, contained further counts alleging loss of consortium, breach of fiduciary duty, and battery. The gist of the complaints was that Almaraz acted wrongfully in operating on the two women without first telling them that he was HIV-positive (and, later, ill from AIDS proper), and that Hopkins was culpable for permitting him to do so. More specifically, appellants alleged that at the time of the consultations and surgeries, Almaraz, knowing of his illness, failed to inform them of any risk of contracting HIV that might result from his performance of the surgical procedures.

They alluded to the possibility of a puncture or laceration through the protective garments worn by the surgeon and a consequent commingling of his blood with their blood. They claimed that by undergoing their operations in ignorance of Almaraz’s illness, they were ⁴⁴² exposed to a hazard they would otherwise have avoided by withholding their consent, namely, a risk of AIDS attendant upon invasive surgery. Both Faya and Rossi alleged that the hospital failed independently to take steps, such as the suspension of Dr. Almaraz’s surgical privileges, to prevent him from operating on unsuspecting patients, or to adequately obtain informed consent from such patients. They further imputed to Hopkins vicarious liability for Almaraz’s conduct, alleging that the physician acted as the hospital’s agent or employee.

Appellants averred in their complaints that as a proximate result of the operations and their subsequent discovery of the alleged wrongdoing by Almaraz and Hopkins, they incurred injuries in the form of exposure to HIV and risk of AIDS, physical injury and financial cost resulting from surveillance blood testing for HIV antibodies, pain, fear, anxiety, grief, nervous shock, severe emotional distress, headache and sleeplessness. Appellees filed motions to dismiss the complaints pursuant to Maryland Rule 2-322 on the ground that appellants had failed to state a claim upon which relief could be granted. The representatives of Dr. Almaraz asserted that the physician owed no duty to disclose his ailment as part of the doctor-patient exchange leading to informed consent. Hopkins contended, in the main, that it had no duty to investigate and ascertain Almaraz’s HIV status; the hospital added that the obligations imposed by the informed consent doctrine did not extend to it in any case.

The appellees further averred that the complaints were legally deficient in that appellants failed to allege that the AIDS virus entered their bodies as a result of surgery, and that the claimed injuries were not legally compensable because they rested on fear of a risk that never materialized. The court (Kaplan, J.) dismissed both complaints in their entirety. In so doing, it concluded that Faya and the Rossis had failed to allege a legally compensable injury, and that ⁴⁴³ their counts must therefore fail as a matter of law. The court first held that appellants had failed to plead sufficient allegations of exposure to the AIDS virus.

Judge Kaplan reasoned: “Because there are no reported cases of transmission of AIDS from a surgeon to a patient, such transmission is only a theoretical possibility when proper barrier techniques are employed____ Plaintiffjs] [have] not alleged that Dr. Almaraz failed to use proper barrier techniques. Furthermore, Plaintiff[s] [have] not alleged that any incident or accident occurred during surgery that would have caused Dr. Almaraz’s blood to enter [their bodies].” The trial court next observed that Ms. Faya and Mrs. Rossi had tested HIV-negative, that is, free of the AIDS virus, in early December 1990. Judge Kaplan thus concluded that even if the appellants had been potentially exposed to the virus, their HIV-negative status more than six months after surgery made it extremely unlikely that they will develop AIDS. Accordingly, the court deemed the injury claimed by appellants to be “the fear that something that did not happen could have happened,” holding that such a fear did not represent an actionable injury for which damages might be recovered.

Faya and the Rossis appealed to the Court of Special Appeals. We issued a writ of certiorari prior to intermediate appellate review to address the important and timely issues raised in these cases. IV A In determining whether the trial court erred in granting the motions to dismiss, we must accept as true all well-pleaded facts and allegations in the complaints, together with reasonable inferences properly drawn therefrom. Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.

Berman v. Karvounis, 308 Md. 259, 264-65 , 518 ⁴⁴⁴ A.2d 726 (1987); Sharrow v. State Farm Mutual, 306 Md. 754, 768 , 511 A.2d 492 (1986); Flaherty v. Weinberg, 303 Md. 116, 135-36 , 492 A.2d 618 (1985); Ungar v. State, 63 Md.App. 472, 479 , 492 A.2d 1336 (1985). We said in Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69 (1991), that “ ‘any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader,' ” quoting Sharrow, supra, 306 Md. at 768 , 511 A.2d 492 . See also Berman, supra, 308 Md. at 265 , 518 A.2d 726 (“[W]hat we consider are allegations of fact and inferences deducible therefrom, not merely conclusory charges.”) Moreover, in order to place a complaint in context, we may take judicial notice of additional facts that are either matters of common knowledge or capable of certain verification. McCormick, Evidence, §§ 329-330 (4th ed. 1992); Murphy, Maryland Evidence Handbook, § 1000(A)(1-2) (1989).

Included in the latter category are facts “capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute.” Murphy, supra, § 1000(A)(2); see also McLain, Maryland Evidence, § 201.4 (1987); Fed.R.Evid. 201(b)(2). In the medical context we have relied, for example, on basic information about sexually transmitted diseases as found in medical journals and reports of the Centers for Disease Control. See B.N. v. K.K., 312 Md. 135, 139-40 , 538 A.2d 1175 (1988) (genital herpes is a contagious, painful, and incurable disease, spread by sexual contact, that endangers public health). The Maryland Court of Special Appeals has relied on similar sources to assess the need for precautions against AIDS transmission.

See Wiggins v. State, 76 Md. App. 188, 198 , 544 A.2d 8 (1988) (wearing of gloves by courtroom security personnel during trial of defendant possibly suffering from AIDS is wholly inconsistent with current theories concerning AIDS transmission), rev’d on other grounds, 315 Md. 232 , 554 A.2d 356 (1989). ⁴⁴⁵ Before examining the legal sufficiency of the appellants’ complaints, therefore, we focus on several well-established and scientifically understood facts about AIDS and its transmission. 2 As we have already noted, AIDS is the disease that results when opportunistic infection preys on a bodily immune system that has been weakened by HIV. HIV is a necessary prerequisite to developing AIDS. U.S. Department of Health and Human Services, Surgeon General’s Report on Acquired Immune Deficiency Syndrome 10 (1987); Hermann & Schurgin, supra, §§ 1:05-1:06. HIV is a fragile virus that can survive only in the habitat of bodily fluids.

While others can carry HIV, the only fluids that can transmit the virus are blood, semen, vaginal fluids and breast milk. For the virus to pass from one person to another, at least one such fluid of the carrier must enter the body of the other. Surgeon General’s Report, at 16. Hermann & Schurgin, supra, § 1:07.

HIV is primarily transmitted through unprotected sexual intercourse, the sharing of contaminated syringes among intravenous drug users, the blood transfusions, although transmission by the latter route has greatly decreased since the Red Cross began testing the blood supply in 1985. Surgeon General’s Report, at 17-20; Hermann & Schurgin, supra, §§ 1:24-1:27. The virus is only transmitted if it reaches the bloodstream of the transmittee. That is, the fluid of the carrier must pass through some channel to the transferee’s blood system.

Hence unprotected sex, needle-sharing, pregnancy and nursing are relatively efficient modes of transfer, while others are not; for HIV to pass in non-sexual, non-needle-sharing contexts, blood must pass both through a wound in the carrier and into a wound in the transferee. In short, the two parties’ blood must commingle. Thus there have been no reports of HIV transmission through casual con ⁴⁴⁶ tact. Surgeon General’s Report, at 21; Hermann & Schurgin, supra, § 1:24. 3 We take notice of one other fact regarding HIV.

While there is often a long latency period between infection with HIV and the onset of AIDS, at least 95% of HIV carriers will test positive for the virus (though not manifest AIDS) within six months of acquiring it. Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. S-7. See also C. Robert Horsburgh et al., Duration of Human Immunodeficiency Virus Infection before Detection of Antibody, The Lancet, September 16, 1989, at 637-40. 4 These characteristics of HIV and AIDS, which the lower court also recognized, are proper objects of judicial notice. 5 ⁴⁴⁷ We, therefore, reject the appellants’ threshold contention that the court below, in dismissing their complaints, erroneously adopted statistics and medical information that were properly the subject of expert testimony, open to challenge at trial. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 , 107 S.Ct. 1123, 1131 , 94 L.Ed.2d 307 (1987) (“[C]ourts normally should defer to the reasonable medical judgments of public health officials.”); Doe v. Borough of Barrington, 729 F.Supp. 376, 381 (D.N.J.1990) (“This court must take medical science as it finds it; its decision may not be based on speculation of what the state of medical science may be in the future.”).

These facts derive from reputable scientific journals and institutions and are well-accepted within the medical community. B While the appellants allege many counts of misconduct by the appellees, the core of their complaints is that Dr. Almaraz was negligent in failing to disclose his HIV-positive status before operating on Faya and Rossi. Appellants assert that a physician’s duty of care must encompass disclosure that an operating surgeon’s HIV-positive status poses the risk, however minimal, of transmission of the AIDS virus during surgery. Appellants maintain that, having properly pleaded this issue, the trial court erred in not ⁴⁴⁸ allowing a jury to evaluate Almaraz’s conduct and its consequences.

We agree. To state a cause of action, in negligence, a plaintiff must allege that the defendant had a duty of care which he breached, and that the breach proximately caused legally cognizable injury. Pennwalt Corp. v. Nasios, 314 Md. 433, 453 , 550 A.2d 1155 (1988); Jacques v. First National Bank of Maryland, 307 Md. 527, 531 , 515 A.2d 756 (1986); Cramer v. Housing Opportunities Comm’n, 304 Md. 705 , 501 A. 2d 35 (1985). The concept of legal duty, we observed years ago, emanates from “the responsibility each of us bears to exercise due care to avoid unreasonable risks of harm to others.” Moran v. Faberge, 273 Md. 538, 543 , 332 A.2d 11 (1975).

We have explored the question of duty in the very context of infectious disease which the instant case represents. In B. N. v. K.K., supra, a nurse alleged that a doctor with whom she had been intimate was negligent in failing to inform her of his genital herpes. We began with the premise that “an important factor used to determine the existence of a duty is foreseeability.” 312 Md. at 141 , 538 A.2d 1175 . We then observed that “one who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact.” Id. at 142, 538 A.2d 1175 .

Because of this foreseeability of transmission, we held that the doctor had a legal duty either to refrain from sexual contact with others or to inform his sexual partners of his disease. Id. at 143, 538 A.2d 1175 . The same principle applies in the instant case. Under the allegations of the appellants’ complaints, taken as true, it was foreseeable that Dr. Almaraz might transmit the AIDS virus to his patients during invasive surgery.

Thus, we are unable to say, as a matter of law, that Dr. Almaraz owed no duty to the appellants, either to refrain from performing the surgery or to warn them of his condition. This is so even though the medical literature indicates ⁴⁴⁹ that, with proper barrier techniques, the risk of HIV transmission during surgery is extremely low, for legal scholars have long agreed that the seriousness of potential harm, as well as its probability, contributes to a duty to prevent it. Restatement, Second, Torts, § 293(c), comment c; Prosser and Keeton, Torts, § 31 (5th ed. 1984); Moran, supra, 273 Md. at 543 , 332 A.2d 11 (“Whether unreasonable risk exists in a given situation depends on balancing the probability and seriousness of harm, if care is not exercised, against the costs of taking appropriate cautions.”). While it may be unlikely that an infected doctor will transmit the AIDS virus to a patient during surgery, the patient will almost surely die if the virus is transmitted.

The House of Delegates of the American Medical Association (AMA) has adopted the following policy statement on HIV-infected physicians: “It should be noted that transmission of HIV from an infected physician to a patient has not yet been reported, but it is a theoretical possibility during invasive procedures. It is longstanding AMA policy that when the scientific basis for patient protection policy decisions are unclear, the physician must err on the side of protecting patients. “That being the case, the following recommendations should be followed in the management of an HIV-infected health care worker: “HIV-infected physicians should disclose their HIV seropositivity to a public health officer or a local review committee, and should refrain from doing procedures that pose a significant risk of HIV transmission or perform these procedures only with the consent of the patient and the permission of a local review committee. This committee will determine the activities the physician can continue to perform.” AMA “Digest of HIV/AIDS Policy,” September 14, 1992. Similarly, the AMA’s Code of Medical Ethics provides: “A physician who knows that he or she has an infectious disease, which if contracted by the patient would pose a ⁴⁵⁰ significant risk to the patient, should not engage in any activity that creates a risk of transmission of that disease to the patient.

The precautions taken to prevent the transmission of a contagious disease to a patient should be appropriate to the seriousness of the disease and must be particularly stringent in the case of a disease that is potentially fatal. “A physician who knows that he or she is [HIV] seropositive should not engage in any activity that creates a risk of transmission of the disease to others. A physician who has HIV disease or who is seropositive should consult colleagues as to which activities the physician can pursue without creating a risk to patients.” AMA Council on Ethical and Judicial Affairs, “Current Opinions, Code of Medical Ethics,” 1992. Thus, in evaluating the well-pleaded allegations of the complaints with respect to the duty component of the tort of negligence, we cannot conclude that they are legally insufficient to survive the appellees’ motions to dismiss; in other words, we cannot say as a matter of law that no duty was imposed upon Dr. Almaraz to warn the appellants of his infected condition or refrain from operating upon them. 6 ⁴⁵¹ The appellants pleaded that as a result of Dr. Almaraz’s breach of duty, they were put in fear of having contracted HIV and thereby suffered the derivative consequences of that fear, which were manifested by emotional and mental distress, headaches, sleeplessness, and, in addition, the pain and expense associated with repeated blood tests. We turn now to the question of whether these are legally compensable injuries where the appellants have not alleged in their complaints an actual transmission of the HIV virus into their bodies during the surgical procedures.

Instead, appellants allege only that because of Dr. Almaraz’s HIV positive status, he exposed them to the virus during the surgery. In this regard, the complaints do not allege that subsequent blood tests have revealed that the appellants have, in fact, shown HIV positive status. C Courts have differed on the question of recovery of damages for the fear of AIDS and attendant physical consequences absent an HIV-positive test. In Burk v. Sage Products, Inc., 747 F.Supp. 285 (E.D.Pa.1990), the court rejected a paramedic’s claim based on fear of contracting AIDS after he suffered a needle-stick from a discarded syringe.

The paramedic could not demonstrate that the needle had been used on an AIDS patient, and he himself had tested HIV-negative no fewer than five times during the thirteen months after the incident. Id. at 286-287 . The court held first that, in the absence of any allegation that the syringe harbored HIV, the plaintiff had failed to establish an exposure to the AIDS virus sufficient to support a cause of action. Id. at 287 .

Moreover, the court found no compensable injury: “Plaintiff here has alleged no injury which arises out of his exposure to the AIDS virus. Rather, plaintiff’s only injuries stem from his fear that he has been exposed to the disease.” Id. at 288 . The court deemed such fear to be unfounded, observing that the five negative tests indicated to a high degree of ⁴⁵² medical certainty that the paramedic would not develop AIDS from his needle-stick. Id. 7 Other courts have concurred with Burk in denying recovery where the plaintiff can demonstrate neither a channel of exposure to the AIDS virus nor demonstrable injury in the form of an HIV-positive test.

See Funeral Services by Gregory, Inc., v. Bluefield