Doe v. Northwestern University

                                   SECOND DIVISION
                                   June 17, 1997







No. 1-96-0067

JOHN DOE, ANITA DOE, BERTHA DOE, BRIAN  )  Appeal from the 
DOE, CAROL DOE, and LAUREL DOE, on      )  Circuit Court of
Behalf of Themselves and Similarly      )  Cook County
Situated Persons,                       )
                                        )
          Plaintiffs-Appellants,        )
                                        )
     v.                                 )
                                        )
NORTHWESTERN UNIVERSITY, and JOHN NOE,  )
Indiv. and as Their Agent,              )  Honorable
                                        )  Julia M. Nowicki,
          Defendants-Appellees.         )  Judge Presiding.

     JUSTICE McNULTY delivered the opinion of the court:
     The six fictitiously named plaintiffs sued Northwestern
University and a dental student from Northwestern's dental school
for emotional harm they suffered when Northwestern sent the
plaintiffs a letter informing them that a dental student who
participated in their treatment had tested positive for human
immunodeficiency virus (HIV), the virus that causes acquired immune
deficiency syndrome (AIDS).  Defendants moved to dismiss for
failure to state a cause of action, pursuant to section 2-615 of
the Code of Civil Procedure (735 ILCS 5/2-615(b) (West 1994)), and
they separately moved to dismiss pursuant to section 2-619 (735
ILCS 5/2-619(a)(9) (West 1994)). Plaintiffs appeal from the trial
court's judgment dismissing the complaint with prejudice.
     The six fictitiously named plaintiffs received various
treatments from several students in Northwestern's dental clinic
during 1990 and 1991.  On July 22, 1991, Northwestern sent a letter
to all six plaintiffs, along with numerous other patients, stating:
          "Recently we learned that a dental student involved
     in providing care to you in the Dental Clinic has tested
     positive for HIV ***.
          We believe, based on the most current and reliable
     scientific evidence, that the likelihood that you were
     infected with the HIV virus as a result of contact with
     this student is extremely low.  All persons providing
     dental care are required to follow precautions designed
     to prevent the communication of diseases, including HIV. 
     These precautions have been taken.  However, we strongly
     recommend that you be tested for the presence of the
     virus.
          The Northwestern University Dental School is
     offering free testing for HIV." (Emphasis in original.)
Because defendants did not in the letter identify the infected
student, plaintiffs feared that any of the students may have been
infected.  Plaintiffs' attorneys later determined the identity of
the infected student, whom they then sued under the fictitious name
of John Noe.  Noe worked in Northwestern's dental clinic from June
1990 until July 1991.  He participated in electrosurgery to reduce
Anita Doe's gums and in a root canal performed on her in July and
August 1990.  He diagnosed Laurel Doe's fractured tooth and
participated in a tooth extraction in September 1990.  He took X
rays of Bertha Doe's teeth in March 1991.  Noe treated John Doe
several times over the course of his year in the clinic.  The last
treatment was a tooth cleaning Noe performed on May 23, 1991. 
Anita, Laurel and John bled during Noe's treatments.  Noe cemented
a loose tooth for Brian Doe in August 1990, and he took Carol Doe's
blood pressure while discussing oral hygiene with her in February
1991.
     Plaintiffs allege that both Noe and Northwestern knew Noe had
tested positive for HIV by August 1990, when he treated Anita Doe. 
Defendants presented affidavits denying both the testing and the
knowledge, and the concurrence relies on this evidence to support
its assertion that defendants here acted promptly and responsibly. 
However, the affidavits merely contradict an ultimate fact stated
in the complaint.  See Inland Real Estate Corp. v. Lyons Savings &
Loan, 153 Ill. App. 3d 848, 854, 506 N.E.2d 652 (1987).  While the
evidence might have some relevance to a motion for summary
judgment, it has no bearing on the motions to dismiss pursuant to
section 2-615 or 2-619.  Cioni v. Gearhart, 201 Ill. App. 3d 853,
856-57, 559 N.E.2d 494 (1990).  Accordingly, we ignore that
evidence for review of the order dismissing the complaint.  We
assume that Noe tested positive for HIV, and Northwestern knew of
that positive test, prior to August 1990.
     Plaintiffs further alleged:
          "Accidental blood trauma to the hands and fingers of
     dental practitioners can occur during the performance of
     invasive dental procedures such as teeth cleaning,
     extractions, fillings, drilling, root canals, injections,
     and other dental surgeries."
They claimed the traumas could occur even though neither the
patient nor the practitioner knew of the trauma, and sometimes
practitioners might conceal from their patients the occurrence of
such trauma.  Plaintiffs alleged that some of the students
sometimes failed to use all proper barrier precautions, like
gloves.  Plaintiffs did not allege that any of them knew or
believed that any dental student suffered such trauma while
treating them.
     Plaintiffs brought a complaint in 12 counts.  In the first
count they sought certification of the class of all persons who
received Northwestern's letter, with the six fictitiously named
plaintiffs as class representatives.  For all subsequent counts,
plaintiffs separated those whom Noe invasively treated from
plaintiffs who received no such treatment.  According to
plaintiffs, Anita, Laurel, Bertha and John Doe received invasive
treatment, while Noe never invasively treated Brian or Carol Doe.
The invasively treated plaintiffs charged defendants with breach of
fiduciary duty (count II), intentional infliction of emotional
distress (count IV), battery (count VI), common law fraud (count
VII), consumer fraud (count XII), breach of contract (count VIII),
and negligent malpractice (count X).  Brain and Carol sued for
breach of fiduciary duty (count III), intentional infliction of
emotional distress (count V), breach of contract (count IX), and
dental malpractice (count XI).
     In counts II through XII, plaintiffs alleged they "suffered
physical distress and discomfort and mental pain and anguish upon
learning of the possibility of infection with HIV."  Plaintiffs do
not allege that any of them have ever tested positive for HIV, and
in response to defendants' request, the named plaintiffs admitted
that they never tested positive for HIV.  This is evidence of an
affirmative matter related to an argument for defeating the claim,
properly considered on a motion to dismiss pursuant to section 2-
619.  Goldstein v. Lustig, 154 Ill. App. 3d 595, 602, 507 N.E.2d 164 (1987).  Defendants also presented the conclusions of studies
which found only a very small chance of transmission of HIV in the
course of medical treatment.  Although plaintiffs in their
complaint emphasized that researchers could not rule out the
possibility of HIV transmission from health care providers to
patients, they did not allege any particular level of probability
of transmission.  Defendants' evidence of an extremely small
probability of such transmission is properly before the court on
review of the section 2-619 motion.
     The trial court dismissed counts II through XII for failure to
allege actual exposure to HIV, finding that allegation necessary
for recovery of damages for fear of contracting AIDS.  While
plaintiffs on appeal contest the requirement of actual exposure,
they do not dispute the trial court's finding that "[a]s to all
counts, the plaintiffs' damages are predicated on the fear of
contracting *** HIV."  The court dismissed count I and denied the
motion for class certification because the named plaintiffs had no
cause of action.
     Plaintiffs seek reversal of the judgment as to all counts. 
They argue that they have stated a cause of action for battery
because they never consented to treatment by a student infected
with HIV.  To state a cause of action for a battery in the course
of health care, the plaintiff must allege
     "a total lack of consent to medical procedures ***. ***
     The defendants' privilege is limited at least to acts
     substantially similar to those to which the plaintiffs
     consented.  If the defendants went beyond the consent
     given, to perform substantially different acts, they will
     be liable under a theory of battery."  (Emphasis in
     original.)  Gaskin v. Goldwasser, 166 Ill. App. 3d 996,
     1012, 520 N.E.2d 1085 (1988).
The United States Court of Appeals for the Seventh Circuit
explained:
          "Illinois law distinguishes between medical
     malpractice cases alleging no informed consent and those
     claiming a total lack of consent to the medical procedure
     in question.  [Citation.]  Informed consent cases concern
     the duty of a physician who has obtained consent to
     perform a medical procedure to disclose fully the risks
     associated with that procedure.  Such cases are viewed as
     negligence actions.  Total lack of consent cases involve
     a physician who undertakes to treat a patient without the
     patient's consent; absent consent, it is meaningless to
     require the disclosure of risks necessary to an
     'informed' decision.  Rather, total lack of consent cases
     are treated as batteries because they involve an
     intentional unauthorized touching of the person of
     another."  Lojuk v. Quandt, 706 F.2d 1456, 1460 (7th Cir.
     1983).
     Plaintiffs here consented to all of the dental procedures;
they did not know about risks associated with the procedures when
Dr. Noe performed them.  In Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993), the plaintiff sued a doctor for performing surgery on
him without disclosing that the doctor was HIV positive.  The court
rejected the battery claim, holding that "[t]he cause of action for
lack of informed consent is one in tort for negligence, as opposed
to battery or assault."  Faya, 329 Md. at 450 n.6, 620 A.2d  at 334
n.6; see also W. Keeton, Prosser & Keeton on Torts 18, at 120-21
(5th ed. 1984).  We agree.  Plaintiffs separately stated their
cause of action for negligence and dental malpractice based on the
failure to obtain informed consent.  Therefore we affirm dismissal
of count VI, in which plaintiffs sought recovery for battery.
     Plaintiffs also argue that they have stated a cause of action
for violation of the Consumer Fraud and Deceptive Business
Practices Act (the Act) (815 ILCS 505/1 et seq. (West 1992)), by
alleging that defendants intended plaintiffs to rely on their
deceptive failure to inform plaintiffs of Noe's HIV status and that
the deception occurred in the course of commerce.  See Siegel v.
Levy Organization Development Co., 153 Ill. 2d 534, 542, 607 N.E.2d 194 (1992).  In Frahm v. Urkovich, 113 Ill. App. 3d 580, 447 N.E.2d 1007 (1983), this court held that the Act does not apply to the
actual practice of law.  The court extended the holding of Frahm to
medical services in Feldstein v. Guinan, 148 Ill. App. 3d 610, 615,
499 N.E.2d 535 (1986), holding that "[t]he practice of medicine is
not the equivalent of an ordinary commercial enterprise." 
Following Feldstein and Frahm, we hold that the provision of dental
services for educational purposes does not constitute "trade or
commerce" within the meaning of the Act.  815 ILCS 505/2 (West
1992).  Hence, we affirm dismissal of count XII, charging violation
of the Act, for failure to state a claim.
     The plaintiff must allege legally cognizable damages to plead
a cause of action for common law fraud (People ex rel. Hartigan v.
E&E Hauling, Inc., 153 Ill. 2d 473, 490, 607 N.E.2d 165 (1992)),
breach of fiduciary duty (Suppressed v. Suppressed, 206 Ill. App.
3d 918, 925, 565 N.E.2d 101 (1990); Chicago City Bank & Trust Co.
v. Lesman, 186 Ill. App. 3d 697, 701, 542 N.E.2d 824 (1989)),
intentional infliction of emotional distress (McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806 (1988)), breach of contract
(National Underground Construction Co. v. E.A. Cox Co., 216 Ill.
App. 3d 130, 136, 576 N.E.2d 283 (1991)), or medical malpractice
(Addison v. Whittenberg, 124 Ill. 2d 287, 297, 529 N.E.2d 552
(1988)).  For all of these counts, we assume that plaintiffs have
adequately alleged facts establishing defendants' duties to
plaintiffs and showing that defendants breached those duties.  We
confine our discussion to the adequacy of the allegations of
damages.
     Emotional distress constitutes legally cognizable damage only
where the distress is particularly severe.  "The law intervenes
only where the distress inflicted is so severe that no reasonable
man could be expected to endure it."  McGrath, 126 Ill. 2d  at 86. 
Plaintiffs suggest that AIDS causes such severe panic that any
reasonable fear of AIDS should be compensable, even without proof
of "actual exposure."  See Faya, 329 Md. at 455, 620 A.2d at 336-
37; Castro v. New York Life Insurance Co., 153 Misc. 2d 1, 588 N.Y.S.2d 695 (Sup. Ct. 1991); Williamson v. Waldman, 291 N.J.
Super. 600, 677 A.2d 1179 (App. Div. 1996), cert. granted 147 N.J.
259, 686 A.2d 761 (1996).  Defendants cite more numerous cases
requiring "actual exposure."  E.g., Carroll v. Sisters of Saint
Francis Health Services, Inc., 868 S.W.2d 585, 594 (Tenn. 1993);
Russaw v. Martin, 221 Ga. App. 683, 686, 472 S.E.2d 508, 512
(1996).  In Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793,
797, 643 N.E.2d 1200 (1994), the court held that in the absence of
proof of actual exposure, the plaintiff's fear of AIDS was
"unreasonable as a matter of law."  
     In Williamson the court criticized the reasoning of cases
requiring proof of actual exposure:
          "It cannot validly be said, as a matter of law, in
     the light of common knowledge, that a person who receives
     a puncture wound from medical waste reacts unreasonably
     in suffering serious psychic injury from contemplating
     the possibility of developing AIDS, even if only for some
     period of time, until it is no longer reasonable,
     following a series of negative tests, to apprehend that
     result.  ***
          ***
          *** [C]ourts ought not to be unduly reluctant to
     reach results consonant with the reasonable reactions of
     real people as long as basic principles of tort law are
     preserved, including those that preclude the creation of
     duties that reasonably thoughtful  defendants would not
     foresee."  Williamson, 291 N.J. Super. at 604-05, 677 A.2d  at 1181. 
See also Surgicare, 268 Ill. App. 3d at 799-802 (Barry, J.,
dissenting).
     The plaintiff in Williamson punctured herself on a sharp
instrument improperly left in the trash.  She did not know whether
the instrument had been in contact with an HIV-positive person, but
she feared that she contracted HIV.  The court held:
     "[AIDS] is a disease universally dreaded by the lay
     public.  Under those circumstances, it cannot be
     concluded as a matter of law that the plaintiff reacted
     unreasonably or unforeseeably.  Fearing that she faced
     serious injury as a result of exposure to HIV, it was not
     unreasonable that she would be greatly upset during the
     period of time that was necessary to obtain medical
     assurance that she was not infected.  It may very well be
     that there is some period of time after receiving a 
     puncture wound from medical waste during which any person
     would experience a range of mental reactions, from mere
     anxiety to actionable emotional distress,  and ought to
     be eligible for compensation therefor if she meets the
     required tests, including the serious injury standard
     applying to all claims based upon  infliction of
     emotional distress."  Williamson, 291 N.J. Super. at 605-
     06, 677 A.2d  at 1181.
     Although we are persuaded by the reasoning of Williamson that
a reasonable person in plaintiffs' situation would foreseeably fear
that he or she might have contracted HIV, we disagree with that
court's conclusion that the complaint must, therefore, state a
compensable claim.  Williamson, in effect, creates a special rule
for fear of AIDS as opposed to other fears: that decision allows
compensation for any reasonable fear of AIDS, regardless of the
remoteness of the medically verifiable possibility of contracting
the disease.  This creates a special AIDS exception to the general
rule that not all reasonable fears are compensable.  See Allen v.
Otis Elevator Co., 206 Ill. App. 3d 173, 563 N.E.2d 826 (1990).  In
Illinois reasonable fears are not compensable unless they reach a
level of severity that would be inconsistent with an extremely
remote, insubstantial possibility of contracting disease.  See
Wetherill v. University of Chicago, 565 F. Supp. 1553 (N.D. Ill.
1983).
     A plaintiff who has suffered a physical impact and injury due
to a defendant's negligence may recover for emotional distress 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, 206 Ill. App. 3d at 183-
84, 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 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.  We emphasize that 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 v. Southern Baptist
Hospital, 630 So. 2d 861, 866 (La. App. 1993); 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).
     We find that plaintiffs who fear that they have contracted
AIDS because of a defendant's negligence should recover damages for
the time in which they reasonably feared 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.  We believe 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).
     The concurrence accuses us of "stop[ping] short" and adopting
a "lesser standard" than the "actual exposure" requirement the
concurrence espouses.  The standard adopted herein is distinct
from, not lesser than, the "actual exposure" requirement.  Under
the standard stated herein, a plaintiff who has proved an "actual
exposure" will recover no damages if she presents insufficient
evidence that she feared a substantial, medically verifiable
possibility of contracting AIDS.  Under the standard the
concurrence espouses, a plaintiff may recover damages for an
"actual exposure," even without evidence that she knew facts
showing a substantial possibility of contracting the disease.
     The concurrence presents no reason to believe the "actual
exposure" requirement addresses relevant policy considerations any
better than the test we adopt.  In particular, the substantial,
medically verifiable possibility test directly addresses the degree
to which a plaintiff's fears are based on speculation or public
misconceptions rather than verifiable medical evidence of risk.  As
the concurrence correctly points out, under the standard we adopt,
litigation will focus on differing opinions as to what level of
medically verified risk qualifies as a substantial possibility of
contracting AIDS.  We believe that this is precisely the proper
focus for litigation.  The parties should marshal medical evidence
of the possibility of contracting the disease and argue as to
whether that possibility is so substantial as to merit
compensation.  The rhetoric of the concurrence would instead focus
the attention of litigants and the courts on the less informative
issue of whether the occurence qualifies as an "actual" exposure.
     Developing case law on the medically verifiable statistical
possibilities should bring convergence to a reasonable standard for
compensation.  The results under this standard could hardly be more
divergent than have been the results of cases purportedly applying
the "actual exposure" test.  For example, in Burk v. Sage Products,
Inc., 747 F. Supp. 285, 287 (E.D. Pa. 1990), where an improperly
discarded needle on a hospital floor with AIDS patients stuck the
plaintiff, the court held that any question concerning exposure to
HIV was sufficient to defeat the claim.  In Vallery, 630 So. 2d  at
867-68, the plaintiff alleged only that an HIV-positive patient
bled onto the plaintiff's unprotected hand.  The court found the
allegations sufficient to state a claim for relief, although the
plaintiff did not allege that he had any open sores or cuts and the
court noted the need for expert testimony.  Compare also Surgicare,
268 Ill. App. 3d 793 643 N.E.2d 1200; De Milio, 285 N.J. Super. at
198-99, 666 A.2d  at 634-35.
     The standard we adopt meets the need for proof that the fear
has a genuine basis, not based on public misconceptions, and given
the inconsistent application of "actual exposure," the proposed
test seems to have a better chance for consistent application.  The
concurrence presents no convincing advantage to be gained by
adopting the "actual exposure" requirement rather than requiring
plaintiffs to present evidence that they knew facts that showed a
substantial, medically verifiable possibility of contracting the
feared disease.
     Here, plaintiffs received letters informing them that a dental
student involved in their treatment tested positive for HIV.  The
letters also said that the plaintiffs faced an extremely low
likelihood of HIV infection.  Although plaintiffs alleged that some
dental students sometimes failed to use proper precautions, they
did not allege that any plaintiff saw any dental student bleed. 
Thus, when they received the letters, plaintiffs knew of only a
remote possibility that the student infected with HIV may have,
unbeknown to the plaintiffs, bled while treating a plaintiff, while
using inadequate precautions, and while plaintiffs had blood
vessels sufficiently exposed for communication of the virus.  They
have alleged no adequate reason for disbelieving defendants'
statement that the likelihood of infection was extremely low. 
Plaintiffs' negative HIV tests accorded with the probabilities.
     Defendants' letter itself shows that plaintiffs had reason to
fear that they might have been infected with HIV.  However, not all
reasonable fears of AIDS are compensable.  Plaintiffs have not
alleged facts that could support a finding that they faced more
than an extremely remote possibility of contracting AIDS.  In the
absence of a particularly substantial risk of HIV infection,
plaintiffs' reasonable fears were not severe enough to warrant tort
compensation.  Plaintiffs have not suffered legally cognizable
damages due to defendants' alleged malpractice, fraud, intentional
infliction of emotional distress, or breaches of fiduciary duty or
contract.  We affirm the trial court's decision dismissing those
counts of the complaint.  Because the trial court correctly
dismissed the named plaintiffs' alleged causes of action, it
properly denied the motion for class certification and dismissed
count I, the class action count.  See Evans v. International
Village Apartments, 165 Ill. App. 3d 1048, 1051, 520 N.E.2d 919
(1988).
     The trial court properly dismissed count VI, the battery
claim, because plaintiffs stated an action only for a failure to
inform them of a risk, not for proceeding with a complete lack of
consent.  Count XII fails to state a claim for violation of the
Consumer Fraud Act because the Act does not apply to the school's
normal practice of dentistry.  The court properly dismissed counts
II through V and VII through XI, pursuant to section 2-619 (735
ILCS 5/2-619(a)(9) (West 1994)), on the basis of defendants'
affirmative evidence that plaintiffs' reasonable fears never
attained compensable severity.  Because plaintiffs never faced a
medically verified substantial risk of contracting HIV, they did
not suffer legally cognizable damages.  In view of the dismissal of
all other counts, the court correctly dismissed the class action
count.  Accordingly, we affirm the judgment dismissing the
complaint in its entirety.
     Affirmed.
     TULLY, J., concurs.
     DiVITO, P.J., specially concurs.
     PRESIDING JUSTICE DiVITO specially concurring:
     Although I agree with the result reached by the majority and
with much of its analysis, I disagree with the standard it applies
to determine whether a fear of HIV infection is compensable. 
According to the majority, plaintiffs may recover damages "for the
time in which they reasonably feared a substantial, medically
verifiable possibility of contracting AIDS."  Slip op. at 15.  The
majority states that this standard is compatible with cases
requiring plaintiffs to prove actual exposure to the virus in order
to recover damages based on a fear of HIV infection, but it stops
short of requiring actual exposure.  I write separately because I
believe that an actual exposure requirement is preferable.
     According to the majority, plaintiffs' fears of HIV infection
were reasonable but not severe enough to warrant tort compensation. 
The majority states that plaintiffs' fears would have been
compensable if they had faced "a particularly substantial risk of
HIV infection," but because they did not face more than an
extremely remote possibility of contracting AIDS, they did not
suffer legally cognizable damages.  Slip op. at 19.  While I agree
that plaintiffs failed to show that they suffered legally
cognizable damages, I believe that the compensability of a claim
for fear of HIV infection should depend on proof that a plaintiff
was actually exposed to the virus.
     To establish actual exposure, a plaintiff must show that HIV
was present in the alleged disease-transmitting agent and that a
medically-accepted channel of transmission for the virus existed. 
See Madrid v. Lincoln County Medical Center, 122 N.M. 269, 923 P.2d 1154, 1160 (1996); see also Vallery v. Southern Baptist Hosp., 630 So. 2d 861, 867 (La. App. 1993) (plaintiff must show both the
presence of the virus and a channel of transmission); Brown v. New
York City Health & Hospitals Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880, 886 (1996) (requiring proof of actual exposure, that is,
"proof of both a scientifically-accepted method of transmission of
the virus (in this case a needle puncture) and that the source of
the allegedly transmitted blood or fluid was in fact HIV-positive
(in this case the unfortunate infant"); Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (requiring evidence of actual exposure to the
virus and evidence of a medically recognized channel of
transmission).
     The application of the actual exposure requirement is
supported by a third district decision in this state, Doe v.
Surgicare of Joliet, Inc., 268 Ill. App. 3d 793, 643 N.E.2d 1200
(1994), appeal denied, 158 Ill. 2d 550, 645 N.E.2d 1357 (1994), as
well as by decisions in a majority of jurisdictions.  See, e.g.,
Brzoska v. Olson, 668 A.2d 1355 (Del. 1995); Russaw v. Martin, 221
Ga. App. 683, 472 S.E.2d 508 (1996); Neal v. Neal, 125 Idaho 617,
873 P.2d 871 (1994); Vallery v. Southern Baptist Hosp., 630 So. 2d 861 (La. App. 1993); K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995);
Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Drury v. Baptist
Memorial Hosp. System, 933 S.W.2d 668 (Tex. App. 1996); Funeral
Services by Gregory, Inc. v. Bluefield Community Hosp., 186 W. Va.
424, 413 S.E.2d 79 (1991), rev'd on other grounds, Courtney v.
Courtney, 190 W. Va. 126, 437 S.E.2d 436 (1993);  Babich v.
Waukesha Memorial Hosp., Inc., 205 Wis. 2d 690, 556 N.W.2d 144
(Wis. App. 1996); but see Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993); Williamson v. Waldman, 291 N.J. Super. 600, 677 A.2d 1179 (App. Div. 1996).
     The reasoning of these cases is persuasive.  For example, in
Brown v. New York City Health & Hospitals Corp., 225 A.D.2d 36, 648 N.Y.S.2d 880, 886 (1996), the court required a showing of actual
exposure in a negligence case based on a fear of developing AIDS. 
The court stated that the actual exposure requirement would insure
that a plaintiff's fear of developing the disease has a genuine
basis, that a plaintiff's fear is not based on public
misconceptions, and that cases involving claims based on a fear of
HIV infection are treated consistently.  The court further
explained:
          "Because an 'AIDS-phobia' cause of action is based
     on a potential future injury, the requirement of proof of
     actual exposure is necessary in order to insure that such
     a cause of action remains within the bounds of what is
     considered reasonably possible.  The fear of contracting
     AIDS depends not only upon the likelihood that the virus
     was transmitted during a specific incident but also upon
     the likelihood that infection will develop.  As one court
     noted, the statistical probability of contracting HIV
     from a single needle stick, assuming the needle was
     contaminated, is approximately 0.3 to 0.5 percent.  Thus,
     the risk of exposure to HIV where the needle cannot be
     traced to a previous user is less than that, although it
     cannot be mathematically calculated [citation]."  Brown,
     648 N.Y.S.2d  at 887. 
See also Brzoska, 668 A.2d at 1362-64; Russaw, 472 S.E.2d  at 511. 
     The court in K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995),
also listed a number of policy considerations that support an
actual exposure requirement:
     "Proliferation of fear of AIDS claims in the absence of
     meaningful restrictions would run an equal risk of
     compromising the availability and affordability of
     medical, dental and malpractice insurance, medical and
     dental care, prescription drugs, and blood products. 
     Juries deliberating in fear of AIDS lawsuits would be
     just as likely to reach inconsistent results,
     discouraging early resolution or settlement of such
     claims.  Last but not least, the coffers of defendants
     and their insurers would risk being emptied to pay for
     the emotional suffering of the many plaintiffs uninfected
     by exposure to HIV or AIDS, possibly leaving inadequate
     compensation for plaintiffs to whom the fatal AIDS virus
     was actually transmitted."  K.A.C., 527 N.W.2d  at 559-60,
     quoting Kerins v. Hartley, 27 Cal. App. 4th 1062, 33 Cal. Rptr. 2d 172 (1994).
For these reasons, I would require proof of actual exposure as a
prerequisite to recovery in cases based on a fear of HIV infection.
     In this case, plaintiffs alleged breach of contract, breach of
fiduciary duty, fraud, intentional infliction of emotional
distress, and medical negligence.  For all of these claims, the
damages plaintiffs alleged were their fears of HIV infection.  For
breach of contract and tort actions, such as these, however, a
defendant is liable only for consequences that were the proximate
result of its conduct and is not liable for speculative damages. 
See Feldstein v. Guinan, 148 Ill. App. 3d 610, 613, 499 N.E.2d 535
(1986); DMI, Inc. v. Country Mutual Insurance Co., 82 Ill. App. 3d
113, 115, 402 N.E.2d 805 (1980).  Because plaintiffs failed to
allege actual exposure, their fears were based on speculation and
cannot be said to have resulted from defendants' conduct. 
Consequently, their damages are not legally cognizable.  See, e.g.,
Russaw v. Martin, 221 Ga. App. 683, 472 S.E.2d 508 (1996) (without
proof of actual exposure, the plaintiffs' fears were unreasonable,
and damages cannot be based on imagined possibilities); Bain v.
Wells, 936 S.W.2d 618 (Tenn. 1997) (plaintiff failed to establish
proximate cause for negligent infliction of emotional distress
because he offered no evidence of actual exposure); Funeral
Services by Gregory, Inc. v. Bluefield Community Hosp., 186 W. Va.
424, 413 S.E.2d 79 (1991), rev'd on other grounds, Courtney v.
Courtney, 190 W. Va. 126, 437 S.E.2d 436 (1993) (plaintiff had no
legally compensable injury because, without proof of actual
exposure, his fear was unreasonable); Drury v. Baptist Memorial
Hospital System, 933 S.W.2d 668 (Tx. Ct. App. 1996) (a fear of HIV
infection that would support an award for mental anguish must be
reasonably based on circumstances showing actual exposure to a
disease-causing agent; because plaintiff failed to allege actual
exposure, her fear was unreasonable and, therefore, she had no
damages).
     Although the majority suggests a standard that approaches the
actual exposure requirement, I believe that a lesser standard is
insufficient.  We should require proof of actual exposure because,
in addition to other public policy benefits, this standard is
easier to understand and to apply.  The majority states that a
plaintiff should be able to recover for a fear of HIV infection if
she shows she had a reasonable fear of a "substantial, medically
verifiable possibility of contracting AIDS" (slip op. at 15).  I
endorse the actual exposure standard because I fear that differing
opinions as to what is a "substantial possibility" of HIV infection
will lead to increased litigation and divergent results in cases
involving a fear of HIV infection.
     The actual exposure requirement is particularly helpful to
controlling litigation in cases such as this, where much of the
damages plaintiffs allege arise from the letter they received.  We
should commend health care providers for taking the initiative to
advise patients of a risk of HIV infection, not penalize them for
doing so.  By requiring proof of actual exposure, courts establish
a principle of law that encourages timely notification, which is
critical in controlling further spread of the virus.  See also 410
ILCS 325/5.5(b) (West 1993) (providing for the notification of
patients of an HIV-infected health care provider).  The uncertainty
associated with a lesser standard, on the other hand, may
discourage notification.
     For these reasons, I specially concur.