Lemon v. Stewart

WILNER, Chief Judge. This medical malpractice action, which makes its second appearance in this Court, presents two interesting questions of first impression in Maryland: (1) when a patient is diagnosed as positive for HIV or AIDS, does the patient’s health care provider have a duty to inform members of the patient’s extended family, such as appellants in this case, of the patient’s positive HIV/AIDS status; and (2) do such persons have a cause of action against the health care provider for breaching its duty to advise its patient of his or her positive HIV/AIDS status? We shall answer both questions in the negative and therefore affirm the judgment of the trial court. BACKGROUND The fourteen appellants, who were plaintiffs below, are persons who are “either related to, or have otherwise had personal contact with” one Herbert Lemon, Sr. They initially sued appellees Donald Stewart, who is a physician, and Liberty Medical Center, Inc. in the Circuit Court for Baltimore City, seeking $5 million apiece in damages because the appel ⁵¹⁵ lees omitted to inform Mr. Lemon, appropriate health authorities, or appellants that Mr. Lemon was HIV-positive.

The amended complaint alleged four causes of action as to each of the appellants—negligence, negligent misrepresentation, negligent infliction of emotional distress, and breach of fiduciary duty. The court dismissed the amended complaint on the ground that it failed to allege a cause of action upon which relief could be granted. The negligent infliction of emotional distress count was dismissed because the court found that Maryland does not recognize an independent action of that kind. The other claims were dismissed because they were premised on the breach of some duty flowing to the appellants, and the court concluded, as a matter of law, that no such duty existed on the part of appellees to the appellants.

Appellants appealed that judgment. In an unpublished per curiam Opinion, we concluded that, because the claims made by appellants were for medical injury committed by health care providers, they were required to be submitted first to arbitration in accordance with the Maryland Health Claims Arbitration Act, Md.Code Cts. & Jud. Proc. art., §§ 3-2A-01, et seq. Lemon v. Stewart, 103 Md.App. 778 (1995).

In responding to appellants’ argument that, if no duty existed on the part of the health care providers, there was nothing to arbitrate, we observed that malpractice cases often turn on issues of law, but that did not excuse compliance with the mandatory arbitration process. We noted, in particular, that the proper resolution of the legal issue presented in that case may not be so clear, as the amended complaint was then framed. At p.7 of the slip opinion, we stated: “In Homer v. Long [ 90 Md.App. 1 , 599 A.2d 1193 , cert. denied, 326 Md. 177 , 604 A.2d 444 (1992) ], we observed that courts in other States, in some circumstances, have recognized a duty on the part of health care providers to persons other than their patient, at least when the patient has a readily communicable disease that clearly puts those other persons at significant risk. It does not appear that a Maryland appellate court has yet decided that issue, either ⁵¹⁶ as a matter of common law or, in this context, as a matter of statutory construction.

The issue is fraught with legal, medical, and public policy considerations and should not be decided in a vacuum.” We continued that, before a court is called upon to determine whether, and under what circumstances, a health care provider rendering care to a patient who is HIV-positive or who has developed AIDS has a duty to disclose his patient’s condition to other persons, a, factual record should be developed demonstrating that the claimant falls within a class that the court would be willing to recognize in any event. We pointed out that the amended complaint then before us failed to indicate with any precision the relationship of the various plaintiffs to Mr. Lemon or the nature of the contacts that each had with him. We thus noted that, even if there were a duty on the part of appellees flowing to persons other than Mr. Lemon, it was not at all clear that such a duty would flow to any of the appellants. On that basis, we vacated the judgment and remanded the case.

We directed the court to stay the proceeding pending the outcome of arbitration proceedings initiated by appellants. When the case returned to the circuit court, the parties waived arbitration, as the statute allows them to do. Appellants then filed a new complaint in the circuit court. With three principal exceptions, the new complaint mirrors the amended complaint that was before us in the earlier appeal.

The first difference is that appellants have added a new defendant—Maryland Medical Laboratory, Inc. A second difference is that the complaint alleges only two causes of action—negligence and negligent misrepresentation; claims for negligent infliction of emotional distress and breach of fiduciary duty have been dropped. Finally, in an apparent effort to satisfy our concern about the nature of the relationship between the individual appellants and Mr. Lemon, the new complaint contains a separate count for each appellant. ⁵¹⁷ FACTUAL ALLEGATIONS Because this appeal is from a judgment dismissing the complaint, based upon the pleading itself, we shall accept as true those facts well-pleaded in the complaint. Any ambiguity or uncertainty in those allegations, of course, must be construed against appellants. Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69 (1991); Faya v. Almaraz, 329 Md. 435, 444 , 620 A.2d 327 (1993).

On July 17, 1991, Mr. Lemon, with a history of intravenous drug use, was admitted to Liberty Medical Center, Inc. complaining of slurred speech, expressive aphasia, and right-sided weakness, which appellants claim were suggestive of HIV/ AIDS. While at Liberty, Lemon was under the care of Dr. Stewart. A number of tests, mostly neurological in nature, were conducted. On July 19, 1991, an ELISA (Enzyme-Linked Immunosorbent Assay) test was submitted by Liberty to Maryland Medical Laboratory.

On July 22, the laboratory reported to Liberty a reactive ratio of 4.34, which is positive for the development of antibodies to the HIV organism. That same day, a Western Blot test was performed; on July 24, the laboratory reported a similar result from that test. Mr. Lemon was discharged from the hospital on July 21— prior to its receipt of the test results—as HIV negative. His discharge summary, which was not actually prepared until October, incorrectly stated that an HIV study was performed and showed that Lemon was HIV-negative.

There is no allegation that Mr. Lemon ever saw the discharge summary or was told anything about his HIV/AIDS status, one way or the other, by any of the three defendants. Upon his discharge, Mr. Lemon returned to the home of his sister—appellant Sureña Lemon—where, for the next nine months, she and the other thirteen appellants cared for him in varying ways. The other appellants included another sister, two brothers, four children, and five nieces or nephews. In the introductory part of the complaint, appellants allege that they each had “daily or frequent” but “varying degrees” of contact with Lemon.

Some of them had “direct physical ⁵¹⁸ contact with Herbert Lemon’s bodily secretions, including sputum and blood.” The contact was in the nature of bathing and shaving Mr. Lemon, “assisting in personal hygiene matters,” helping him to the rest room, cleaning his room and bed, washing his clothes, transferring him from bed to chair, and carrying him around the house. The “younger plaintiffs,” it was alleged, came into contact with him through “expressions of affection, including, but not limited to kissing, touching, hugging, and other familial gestures.” These general allegations are made somewhat more specific in the individual counts. Sureña Lemon, for example, alleged that, through bathing Mr. Lemon and changing his diaper, she was exposed to his blood, urine, and feces, as well as fluids from bedsores and from his eyes. Annie Bell Mitchell, another sister, claimed that, through washing, feeding, and otherwise assisting Mr. Lemon, she came into contact with his urine, feces, and other bodily secretions, including blood from cuts.

We need not recite the allegations in each of the fourteen counts; suffice it to say that they are generally similar to those already recounted. It is noteworthy, however, that nowhere in the complaint is it alleged that any of the appellants were sexual partners of Mr. Lemon, that they shared needles with him, or that there was, in fact, any direct transmission of his blood to their own. In the spring of 1992, Mr. Lemon was readmitted to Liberty under the care of Dr. Stewart, and it was then that he was first informed that he had tested positive for HIV/AIDS. “Virtually all” of the appellants were then tested for HIV and found not to have the virus. The gravamen of the fourteen lawsuits is the “daily fear” that the appellants have that, based upon their exposure to Mr. Lemon during the nine months between his discharge from Liberty in July, 1991, and the revelation of his infected status in the spring of 1992, they may yet develop the virus and the deadly disease.

They contend that it can “take up to 15 years to show any signs or symptoms” of the disease. They aver that, had the defendants informed Mr. Lemon, the ⁵¹⁹ appropriate health authorities, or them in July, 1991 that Mr. Lemon has tested positive for AIDS, 1 they would have taken measures to protect themselves and to assure that they did “not come in contact with Mr. Lemon’s bodily fluids or secretions.” In that regard, they also contend that, once Mr. Lemon learned of his condition, he ceased “all further contact” with appellants and that he would have done so in July, 1991, had he been made aware then of his condition. In the section of the complaint averring negligence, appellants contend that (1) pursuant to “statute and/or regulation in Maryland, as well as internal guidelines and procedures,” the defendants had a duty to report Mr. Lemon’s status to the appropriate health officer for Baltimore City and to the other defendants, and that, had they done so, appellants would have been notified of that status; (2) the defendants had a “statutory duty” under Md.Code, Health General art., § 18-602 and related regulations not to expose them carelessly to infected persons such as Mr. Lemon; and (3) the defendants had a statutory and common law duty of care to disclose to appellants “and/or the appropriate health authorities, and/or each other” the fact that Mr. Lemon had tested positive for HIV/AIDS, and that they were negligent in failing to make those disclosures. The claim of negligent misrepresentation is founded upon the same alleged duties but adds that, by their silence, the defendants negligently misrepresented to appellants either that Mr. Lemon had not been tested for HIV/AIDS or that he had tested negatively. ⁵²⁰ DISCUSSION Introduction As indicated above, appellants have alleged at least four different duties on the part of the defendants, which, to some extent, have been lumped together and mingled.

These alleged duties are quite distinct, however, and need to be separated. As we read the complaint, appellants allege one duty on the part of the defendants to notify each other of Mr. Lemon’s status; they allege a second duty to notify appellants, individually; they assert a third duty to notify Mr. Lemon; and they allege a fourth duty to inform the appropriate health authorities in Baltimore City. Duty to Notify Each Other The alleged duty on the part of the defendants to notify each other is the most lacking in clarity, relevance, and foundation. It is evident from the complaint that Maryland Medical Laboratory, Inc.—the defendant that actually conducted the two tests—did accurately report the results of the tests to Liberty.

To the extent that it had a duty to do so, therefore, that duty was satisfied. We are unable to perceive any separate duty that the laboratory had to report the test results to Dr. Stewart. Indeed, there is no averment that it even knew of Dr. Stewart’s existence; the complaint alleges that the hospital, not Dr. Stewart, sent the material to the laboratory for testing. As between Liberty and Dr. Stewart, there is no averment (1) of the basis of any specific duty that the hospital had to inform Dr. Stewart of the laboratory report, which apparently was placed in Mr. Lemon’s hospital record, or (2) that the doctor was not aware of the report made to Liberty or that Liberty in any way prevented him from learning of it.

Nor can we discern any possible duty Liberty or Dr. Stewart had to the laboratory to report what the laboratory already knew and had reported to Liberty. In short, to the extent that the complaint rests on some duty among the three defendants to report to each other, it is wholly lacking a foundation. ⁵²¹ Duty to Inform Appellants The common law duty of care owed by a health care provider to diagnose, evaluate, and treat its patient ordinarily flows only to the patient, not to third parties. Thus, it has often been said that a malpractice action lies only where a health care provider-patient relationship exists and there has been a breach of a professional duty owing to the patient. Hoover v. Williamson, 236 Md. 250 , 203 A.2d 861 (1964); Miller v. Schaefer, 80 Md.App. 60 , 559 A.2d 813 (1989), aff'd, 322 Md. 297, 587 A.2d 491 (1991); Homer v. Long, supra, 90 Md.App. 1 , 599 A.2d 1193 .

As we indicated, in Homer v. Long, we correctly observed that courts in other States, in some limited circumstances, have recognized a duty on the part of health care providers to persons other than their immediate patient, “mostly involving situations in which the patient has, or is thought to have, a communicable disease or otherwise presents a clear danger to a specific person.” Id. at 10 , 599 A.2d 1193 . None of the cases that we cited for that proposition involved a duty to inform a third person that the patient was HIV-positive or had AIDS. They each involved either a communicable disease that was actually transmitted to the plaintiff or that was easily transmittable through casual contact or, as in Tarasoff v. Regents of University of California, 17 Cal.3d 425 , 131 Cal. Rptr. 14 , 551 P.2d 334 (1976), a special relationship between the patient and an identified or identifiable third person that put that third person in particular and foreseeable danger.

Cf. Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986); compare Furr v. Spring Grove State Hosp., 53 Md.App. 474 , 454 A.2d 414 , cert. denied, 296 Md. 60 (1983). No case has been cited to us imposing a common law duty on the part of a health care provider to inform persons other than the provider’s patient of the patient’s positive HIV status, and we have found none. We need not decide here whether Maryland would recognize such an extended duty or the circumstances under