Majca v. Beekil

                                   SECOND DIVISION
                                   June 24, 1997






No. 1-95-3232

EILEEN MAJCA and MICHAEL MAJCA,         )  Appeal from the 
                                        )  Circuit Court of
          Plaintiffs-Appellants,        )  Cook County
                                        )
     v.                                 )
                                        )
STEPHEN BEEKIL and E. CHRISTOPHER       )
CARAVETTE, Ex'r and Personal            )
Representative of the Estate of         )
Peter Lacher, Deceased,                 )  Honorable
                                        )  Jennifer Duncan-Brice,
          Defendants-Appellees.         )  Judge Presiding.

     JUSTICE McNULTY delivered the judgment of the court:
     Plaintiffs, Eileen and Michael Majca, sued Dr. Stephen Beekil
and the estate of Dr. Peter Lacher for negligence that caused
plaintiffs to fear that they may develop acquired immune deficiency
syndrome (AIDS).  We affirm the trial court decision granting
summary judgment.
     Eileen worked as office manager for Dr. Jorge Gaffud in 1991. 
As part of her duties, Eileen cleaned Dr. Gaffud's offices and took
out the trash.  Dr. Beekil rented part of the office space from Dr.
Gaffud.  Dr. Lacher agreed to pay Dr. Beekil half of the fees he
received for work in the office Dr. Beekil rented in exchange for
use of the office space, furniture and supplies one day each week. 
Dr. Lacher used the office on Mondays, while Dr. Beekil worked
there on Wednesdays and Fridays.  No one used the office on
weekends.
     Eileen emptied the garbage when she closed the office on
Friday, March 1, 1991.  She and Dr. Lacher worked in the office on
Monday, March 4, and Dr. Lacher saw two patients that day.  Dr.
Lacher sometimes spat or blew his nose into tissues or paper
towels, and he then threw the tissues or towels into the trash. 
Neither Eileen nor Dr. Lacher took out the trash on Monday.
     Because Dr. Gaffud was on vacation, Eileen worked alone in the
office on March 5, 1991.  Before taking out the trash, she pushed
the overflowing garbage down into the bag.  A used scalpel, hidden
under tissues in the trash, cut her hand.  She saw mucus and dried
blood on the scalpel, mingled with her wet blood.
     Eileen went to another doctor in the office building, and he
told her to go to the hospital.  He called the hospital and told
the nurse there to check Eileen for hepatitis and human
immunodeficiency virus (HIV) infection.  Six stitches closed the
wound.  Eileen left the scalpel in the trash, which she discarded
the next day.  She took antibiotics and pain killers for several
weeks to counteract infection and pain from the wound.  Her HIV
tests in March and June both came back negative.
     Dr. Lacher stopped working at the office in March 1991.  On
November 1, 1991, Dr. Lacher died from AIDS complications.  Eileen
first learned that Dr. Lacher had AIDS on the day he died. She
testified at her deposition:
     "[T]hat's when I just lost it.  
          *** [A doctor] had given me a sedative because I was
     just so worked up, and I started vomiting."
She took her next scheduled HIV test in December, and that test
also showed no evidence of HIV infection.
     In March 1992 Eileen and her husband, Michael, sued Dr. Beekil
and Dr. Lacher's estate, seeking compensation for Eileen's medical
expenses, pain, and her fear that she may contract AIDS, while
Michael sought compensation for loss of consortium.  They alleged
Dr. Lacher's negligent disposal of the scalpel caused their losses,
and they sought to hold Dr. Beekil liable as an occupant of the
office and as Dr. Lacher's partner.  Plaintiffs presented the
affidavit of an AIDS expert who swore that the possibility of
transmission could not be ruled out.
     The trial court granted Dr. Beekil summary judgment on grounds
that Dr. Lacher was neither his partner nor his agent and, as
occupier of the office, Dr. Beekile had no way of knowing of the
dangerous condition created by Dr. Lacher's negligence.  The court
also granted Dr. Lacher's estate summary judgment on plaintiffs'
claims for damages from fear of AIDS.  Plaintiffs settled with the
estate all of their claims for medical expenses and pain for the
cut.  The court then dismissed all remaining claims pursuant to the
settlement, denying plaintiffs' motion for reconsideration of the
ruling on fear of AIDS.  The court, citing Doe v. Surgicare of
Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200 (1994), held
that plaintiffs did not present adequate evidence of actual
exposure to HIV.
     Plaintiffs argue on appeal that Surgicare is wrongly reasoned
and that, even under Surgicare, they presented evidence from which
a trier of fact could find that, more likely than not, the scalpel
that exposed Eileen's blood held some of Dr. Lacher's bodily
fluids, and those fluids contained HIV.  See Vallery v. Southern
Baptist Hospital, 630 So. 2d 861, 867-68 (La. App. 1993).  To
support the trial court's decision, defendants rely on scientific
articles which are not admissible as substantive evidence of the
facts stated therein.  Hoem v. Zia, 239 Ill. App. 3d 601, 623-24,
606 N.E.2d 818 (1992) aff'd, 159 Ill. 2d 193, 636 N.E.2d 479
(1994).  Under the standard advocated by the concurrence in Doe v.
Northwestern University, No. 1-96-0067 (June 17, 1997) (DiVito,
P.J., specially concurring), plaintiffs have adequately presented
evidence of actual exposure and, therefore, this court should
reverse the decision granting summary judgment.  However, under the
reasoning of the majority in Northwestern, plaintiffs are not
entitled to recover because their reasonable fears were never
severe enough to warrant tort compensation.
     Illinois courts permit a plaintiff who has suffered a physical
impact and injury due to a defendant's negligence to recover for
the mental suffering that the injury directly causes.  Carlinville
National Bank v. Rhoads, 63 Ill. App. 3d 502, 503, 380 N.E.2d 63
(1978).  However, commentators have argued that courts should limit
recovery for emotional distress, including fear, because of
          "(1) the problem of permitting legal redress for
     harm that is often temporary and relatively trivial; (2)
     the danger that claims of mental harm will be falsified
     or imagined; and (3) the perceived unfairness of imposing
     heavy and disproportionate financial burdens upon a
     defendant, whose conduct was only negligent, for
     consequences which appear remote from the 'wrongful'
     act."  W. Keeton, Prosser & Keeton on Torts 54, at 360-
     61 (5th ed. 1984).  
See Corgan v. Muehling, 143 Ill. 2d 296, 309, 574 N.E.2d 602
(1991).  Illinois courts address these concerns by requiring
medically verifiable manifestations of severe emotional distress. 
See Corgan, 143 Ill. 2d  at 311-12.  In Allen v. Otis Elevator Co.,
206 Ill. App. 3d 173, 183-84, 563 N.E.2d 826 (1990), the plaintiffs
foreseeably experienced fear, with physical manifestations of
distress, as a result of the defendant's negligence, but the court
held that the foreseeable fear and distress did not reach a degree
of severity that justified tort compensation.  Thus, not all
negligently caused fears are compensable.
     The concerns raised by Keeton and addressed in Corgan
particularly apply to claims that a defendant's negligence has
caused a plaintiff to fear future illness.  These concerns should
lead courts in such cases to restrict recovery to compensation for
severe emotional distress arising from serious fear occasioned by
a substantial, medically verifiable, possibility of contracting the
disease.  In Wetherill v. University of Chicago, 565 F. Supp. 1553
(N.D. Ill. 1983), the court, interpreting Illinois law, found that
a plaintiff claiming that a physical impact caused fear of cancer
needed to prove "a reasonable fear, not a high degree of
likelihood" of contracting the feared illness.  Wetherill, 565 F. Supp.  at 1559.  The court noted that "the distinction is
meaningful, for fears of future injury can be reasonable even where
the likelihood of such injury is relatively low."  Wetherill, 565 F. Supp.  at 1559.  The court emphasized that the plaintiffs in that
case could present medical evidence of studies showing that they
had an increased risk of developing cancer as a result of the
defendants' negligence.
     A small probability of contracting disease must be balanced
against the probable harm if the disease is contracted to determine
whether a plaintiff has alleged adequate grounds for recovering for
severe emotional distress.  The relatively minor fears of the the
plaintiffs in Allen are not comparable to a real, foreseeable fear
of AIDS, such as plaintiffs in this case suffered; however, even a
foreseeable fear of deadly disease may not be compensable if the
feared contingency is too unlikely.
     Where hysterical fear of a disease is sufficiently widespread,
and popular knowledge concerning its etiology is limited, a
plaintiff may foreseeably experience severe emotional distress
without medically verifiable evidence of a substantially increased
risk of contracting the disease.  Most courts have held that
recovery for fear of disease should not extend to such foreseeable
fears, because, as commentators have noted, such broad recovery
rewards ignorance about the disease and its causes.  See Note, The
Fear of Disease as a Compensable Injury: An Analysis of Claims
Based on AIDS Phobia, 67 St. John's L. Rev. 77 (1993); J. Maroulis,
Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for
Their Fear of AIDS, 62 Fordham L. Rev. 225 (1993).  Courts have
accordingly restricted recovery to fears supported by medical
evidence of an increased risk of contracting disease.  See
Wetherill, 565 F. Supp. at 1559-60; Vallery, 630 So. 2d  at 866;
Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249, 161 N.Y.S.2d 832
(1958); Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, 528-
29 (Fla. App. 1985); but see Anderson v. Welding Testing
Laboratory, Inc., 304 So. 2d 351, 353 (La. 1974).  The restriction
on recovery effectively requires plaintiffs to mitigate their fears
by learning what they can about the likelihood that they have
contracted the disease.  Thus, the restriction on recovery is an
aspect of each plaintiff's
     "active duty of making reasonable exertions to render the
     injury as light as possible.   If, by *** negligence or
     wilfulness, he allows the damages to be unnecessarily
     enhanced, the increased loss, that which was avoidable by
     the performance of his duty, falls upon him."  Culligan
     Rock River Water Conditioning Co. v. Gearhart, 111 Ill.
     App. 3d 254, 258, 443 N.E.2d 1065 (1982).
     Plaintiffs ask this court to allow them to recover for fear of
AIDS during the period between the plaintiffs' learning of the
exposure and the receipt of reasonably conclusive HIV-negative test
results.  See Faya v. Almaraz, 329 Md. 435, 455, 620 A.2d 327, 336-
37 (1993); Tischler v. Dimenna, 160 Misc. 2d 525, ___, 609 N.Y.S.2d 1002, 1008-09 (Sup. Ct. 1994); Williamson v. Waldman, 291 N.J.
Super. 600, 606, 677 A.2d 1179, 1181 (1996).  Commentators support
recovery for this period.  See 67 St. John's L. Rev. at 101; 62
Fordham L. Rev. at 262-63.  The limitation to this "window of
anxiety" (Tischler, 160 Misc. 2d at ___, 609 N.Y.S.2d at 1008)
comports with the restriction of recovery to severe emotional
disturbance.  Before tests can determine with reasonable certainty
whether one is HIV-positive, if one knows his bodily fluids may
have come into contact with the bodily fluids of an HIV-positive
person, he has reason to suffer severe emotional distress.  While
one may, after testing, reasonably fear that technicians did not
perform the HIV test properly, or that one falls in the small group
of persons who belatedly develop HIV antibodies or for whom the
tests do not detect the presence of HIV, these fears should not
cause debilitating emotional distress, and the possibility of
contracting the disease following reasonably conclusive negative
tests is too remote to warrant tort compensation.
     A plaintiff who fears that she has contracted AIDS because of
a defendant's negligence should recover damages for the time in
which she had a reasonable fear of a substantial, medically
verifiable possibility of contracting AIDS.  The reasonable,
compensable fear does not include the augmentation of that fear due
to ignorance concerning AIDS and its transmission.  This reasoning
is compatible with the results of most cases requiring proof of
"actual exposure": while any person stuck with a used needle
should, reasonably, fear the possibility of contracting AIDS, this
reasonable fear is not of a sufficient degree to be compensable,
unless the plaintiff faces a particularly substantial risk of HIV
infection, as, for instance, when the plaintiff learns that the
used needle probably held bodily fluids of a person who had HIV. 
As the court said in Vallery, 630 So. 2d at 867:
     "To recognize a cause of action *** when the presence of
     HIV is not shown (or, at the pleading stage, alleged), is
     clearly unsound. Fear in such situations may be genuine
     but it is based on speculation rather than fact."
Accord De Milio v. Schrager, 285 N.J. Super. 183, 201, 666 A.2d 627, 634 (1995).
     Also, a plaintiff's reasonable fear must be considered no
longer compensable once reliable tests show with a high degree of
probability that the plaintiff has not been infected by HIV.  The
negative tests should prevent the reasonable fears from causing
severe emotional distress.  Faya, 329 Md. at 455, 620 A.2d  at 337;
Williamson, 291 N.J. Super. at 606, 677 A.2d  at 1182.  According to
several studies, almost all persons who have contracted the strain
of HIV most common in the United States will test positive within
six months of the initial exposure.  See 67 St. John's L. Rev. at
99-100; Brown v. New York City Health & Hospitals Corp., 164 Misc.
2d 441, ___, 624 N.Y.S.2d 768, 770 (Sup. Ct. 1995), aff'd, 225 A.D.2d 36, 648 N.Y.S.2d 880 (1996).  Plaintiffs here have presented
no evidence calling into question the methodology or conclusions of
these studies.
     Plaintiffs reasonably feared a possibility of contracting AIDS
once Eileen cut herself on the scalpel, but the facts plaintiffs
then knew showed no more than a very remote possibility of HIV
infection.  The reasonable fear could not be sufficiently serious
so as to be compensable until plaintiffs learned that Dr. Lacher
had HIV, which gave them reason to believe that Eileen faced a
particularly substantial risk of HIV infection.  Eileen admitted
that she first learned this on November 1, 1991.  
     By that time Eileen had had two tests showing her HIV-
negative, and nearly eight months had passed since the exposure. 
Her subsequent test, the following month, again came back negative. 
These tests do not remove all doubt, and plaintiffs may remain
reasonably apprehensive that Eileen might, at some time in the
future, test HIV-positive and develop AIDS due to the exposure. 
However, that contingency is highly unlikely, and the reasonable
fears based on that remote contingency are not severe enough to
justify compensation through the courts.  Where plaintiffs could
have taken reliable tests any time after they learned that Dr.
Lacher had been HIV-positive, defendants cannot be held liable for
Eileen's delay from that time until the third, and most nearly
conclusive, test.  Thus, plaintiffs' reasonable fear of AIDS did
not become compensable until November 1, 1991, when they learned of
Dr. Lacher's condition, but by then the negative HIV tests made
their reasonable fears not severe enough to be compensable.  As
there remains no time during which plaintiffs' reasonable fears
attained a compensable severity, we affirm summary judgment in
favor of defendants on the issue of plaintiffs' fear of AIDS.
     Affirmed.
     DiVITO, P.J., specially concurring.
     JUSTICE RAKOWSKI, specially concurring:
     I agree with both of my colleagues that because Eileen Majca
was outside of the "window of anxiety", summary judgment is proper.
     I, therefore, would not address which standard is appropriate. 
Under either, plaintiffs' claims must fail.
     The decisive utterance of this case is that summary judgment
is affirmed because plaintiff is outside the "window of anxiety". 
Further, because my colleagues cannot agree on which standard is
proper, any discussion of this issue does not even rise to the
level of obiter dictum.