JAY ANSON V W A FOOTE MEMORIAL HOSPITAL INC
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
June 8, 2004
DOROTHY CREECH,
Plaintiff-Appellee,
v
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
No. 237437
Jackson Circuit Court
LC No. 00-005650-NH
Defendants-Appellants.
JAY C. PORTER,
Plaintiff-Appellee,
v
No. 237438
LC No. 00-005711-NO
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
SARAH E. WILLIAMS, JOHN WALLACE, and
SHARON WALLACE,
Plaintiffs-Appellees,
v
o. 237439
N
LC No. 00-005740-NH
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
JERRY RICHARD MOORE, SHEREE MOORE,
DENISE REYNOLDS, and GLEN REYNOLDS,
-1-
Plaintiffs-Appellees,
v
No. 237440
LC No. 00-005752-NH
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
JAY ANSON, DOUGLAS AYLESWORTH,
JANET
BEILFUSS,
CHARLES
BELTZ,
THEODORE BREZINSKI, REBECCA BURT,
RENE CHAPA, DAVID CLAUCHERTY,
MAURINE CORYELL, MARY CRANDALL,
DIANE EMERY, LINDA FARLEY, JOLA
FARRELL, LESTER FIDLER, MARK E.
GORZEN, MARY GREEN, RUTH HALE,
SHAWN HAMLIN, BARBARA JEAN HARDEN,
HERBERT ISAACS, MARY JACOBSON, PAUL
KOZLOWICZ, RAY LEWIS, TERESA MAY,
DAVID CLYDE MEISTER, LUCILLE MEYER,
KEVIN
MILLER,
NICHOLAS
MILLER,
DONALD MOON, RUBY MONTGOMERY,
CAROLINE MYERS, ARTHUR NASTALLY,
SUSAN PERRY, TERRY PHALEN, RONALD
RACER,
ROBERT
REESE,
ROBERT
RICHARDSON,
VALERIE
RODERICK,
LUCILLE SEPTA, DANNY SMITH, FRED
STEWART, ROBERT THOMAS, ROY LEE
THOMASSON, JANET TODD, PATRICIA
TREFRY,
TONE
TRUSTY,
KIMBERLY
TUCKER, CHARLES WALKER, STEPHANIE
WALSH, KATHLEEN WILSON, BERNARD
YAGER, SUSAN AYLESWORTH, LINDA
BREZINSKI, MRS. CLAUCHERTY, STEVEN D.
EMERY, WILLIAM A. FARLEY, JR., SHIRLEY
FIDLER, SUE GORZEN, EUGENE GREEN,
JOYCE ISAACS, LAWRENCE O. JACOBSON,
JOAN KOZLOWICZ, JAMES P. MAY,
PHYLLIS A. MEISTER, JAMES MEYER, DEE
MOON, EMILY NASTALLY, MARY PHALEN,
MARY E. RICHARDSON, JEAN STEWART,
PHYLLIS
J.
THOMAS,
SANDRA
F.
THOMASSON, MARIA TRUSTY, GENE T.
TUCKER, KIMBERLY WALKER, JASON
WALSH, JACK WHEELER, JOY YAGER, and
-2-
ALL OTHER SIMILARLY SITUATED,
Plaintiffs-Appellees,
v
No. 237441
LC No. 01-000755-NO
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
JERRY RICHARD MOORE, SHEREE L.
MOORE,
DENISE
REYNOLDS,
GLEN
REYNOLDS, and ALL OTHERS SIMILARLY
SITUATED,
Plaintiffs-Appellees,
v
No. 237442
LC No. 00-005752-NH
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
DOROTHY CREECH and
SIMILARLY SITUATED,
ALL
OTHERS
Plaintiffs-Appellees,
No. 237443
LC No. 00-005650-NH
v
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
SARAH E. WILLIAMS, JOHN WALLACE,
SHARON WALLACE, and ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
v
No. 237444
-3-
LC No. 00-005740-NH
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
JAY C. PORTER and ALL OTHER SIMILARLY
SITUATED,
Plaintiffs-Appellees,
v
No. 237445
LC No. 00-005711-NH
W. A. FOOTE MEMORIAL HOSPITAL, INC.
and STERIS CORPORATION,
Defendants-Appellants.
JAY ANSON, DOUGLAS AYLESWORTH,
JANET
BEILFUSS,
CHARLES
BELTZ,
THEODORE BREZINSKI, REBECCA BURT,
RENE CHAPA, DAVID CLAUCHERTY,
MAURINE CORYELL, MARY CRANDALL,
DIANE EMERY, LINDA FARLEY, JOLA
FARRELL, LESTER FIDLER, MARK E.
GORZEN, MARY GREEN, RUTH HALE,
SHAWN HAMLIN, BARBARA JEAN HARDEN,
HERBERT ISAACS, MARY JACOBSON, PAUL
KOZLOWICZ, RAY LEWIS, TERESA MAY,
DAVID CLYDE MEISTER, LUCILLE MEYER,
KEVIN
MILLER,
NICHOLAS
MILLER,
DONALD MOON, RUBY MONTGOMERY,
CAROLINE MYERS, ARTHUR NASTALLY,
SUSAN PERRY, TERRY PHALEN, RONALD
RACER,
ROBERT
REESE,
ROBERT
RICHARDSON,
VALERIE
RODERICK,
LUCILLE SEPTA, DANNY SMITH, FRED
STEWART, ROBERT THOMAS, ROY LEE
THOMASSON, JANET TODD, PATRICIA
TREFRY,
TONE
TRUSTY,
KIMBERLY
TUCKER, CHARLES WALKER, STEPHANIE
WALSH, KATHLEEN WILSON, BERNARD
YAGER, SUSAN AYLESWORTH, LINDA
BREZINSKI, MRS. CLAUCHERTY, STEVEN D.
EMERY, WILLIAM A. FARLEY, JR., SHIRLEY
-4-
FIDLER, SUE GORZEN, EUGENE GREEN,
JOYCE ISAACS, LAWRENCE O. JACOBSON,
JOAN KOZLOWICZ, JAMES P. MAY,
PHYLLIS A. MEISTER, JAMES MEYER, DEE
MOON, EMILY NASTALLY, MARY PHALEN,
MARY E. RICHARDSON, JEAN STEWART,
PHYLLIS
J.
THOMAS,
SANDRA
F.
THOMASSON, MARIA TRUSTY, GENE T.
TUCKER, KIMBERLY WALKER, JASON
WALSH, JACK WHEELER, JOY YAGER, and
ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
v
No. 237446
LC No. 01-000755-NO
W.A. FOOTE MEMORIAL HOSPITAL, INC. and
STERIS CORPORATION,
Defendants-Appellants.
Before: O’Connell, P.J., and Jansen and Murray, JJ.
MURRAY, J. (concurring in part, dissenting in part)
I concur in the majority’s conclusion that the trial court erred in making any legal
conclusion on the pleadings alone regarding whether the claims were for medical malpractice or
negligence. After discovery on the material facts, the trial court will likely be in a much better
position to resolve that important issue. However, I disagree in part with the remainder of the
majority opinion because the trial court should have ruled as a matter of law that plaintiffs cannot
recover emotional distress or similar damages for the fear that they may have been exposed to
HIV, hepatitis B or C, or other communicable disease. With respect to this type of damage,
which seems to be the main element of damage alleged, the trial court should have granted
defendant hospital’s motion for summary disposition. I also concur that the trial court did not
clearly err in granting class certification for plaintiffs, but I do believe that inclusion of spouses
in a class was clear error. Each plaintiff’s particular relationship with their spouses involve
different factors (dating back many years in some cases) that are particular to each defendant’s
marriage, and preclude a finding of commonality or typicality.
This case involves plaintiffs’ attempts to recover specific damages from defendants
because an allegedly improperly sterilized endoscope was utilized on them by the hospital.
However, many of the plaintiffs did not allege they were actually exposed to the HIV virus, or
any other disease as a result of the tainted equipment; instead, most of their damage allegations
are based on the emotional distress they allegedly suffered from the fear of contracting or
possible exposure to such diseases and the physical injury allegedly suffered when the
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improperly sterilized scope was inserted into them. Because the law does not allow for the
recovery of such speculative damages, the trial court should have dismissed that portion of
plaintiffs’ damage claims.
In order to establish a prima facie case of negligence, plaintiffs must allege and prove the
following four elements: (1) a duty owed by defendants to plaintiffs, (2) a breach of that duty, (3)
causation, and (4) damages. O’Donnell v Garasic, 259 Mich App 569, 573; 676 NW2d 213
(2003). For their damages, all plaintiffs except Plaintiff Creech alleged that they suffered severe
emotional distress, anxiety, mental anguish, etc., from the fear of possibly contracting a disease
(most notably HIV and hepatitis B and C), and a physical injury from the insertion of an
improperly sterilized endoscope.1 Defendants argued to the trial court, and continue to argue on
appeal, that such damages are unrecoverable as a matter of law. Defendants are correct.
In Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986), our
Supreme Court addressed, inter alia, whether a failure to file an asbestosis lawsuit within the
statute of limitations barred a claim for cancer that subsequently developed from the same
asbestos exposure. Larson, supra at 304. In that case, two of the plaintiffs (Glazier and Revard)
developed asbestosis from an asbestos exposure, but eventually died of cancer that possibly
resulted from the same exposure to asbestos that caused the asbestosis. These two plaintiffs’
estates did not timely file with respect to the asbestosis, and since the cancer allegedly developed
from the same asbestos exposure, the trial court dismissed both claims as untimely.
A majority of the Supreme Court, speaking through Chief Justice Williams, held that the
plaintiffs should not be barred from bringing suit based upon the cancer that subsequently
developed because “in order to recover damages on the basis of future consequences, it is
necessary for a plaintiff to demonstrate with ‘reasonable certainty’ that the future consequences
will occur.” Id. at 317, citing Prince v Lott, 369 Mich 606, 609; 120 NW2d 780 (1963). In other
words, a plaintiff would be precluded from recovering damages for future consequences unless
there was a reasonable certainty that those consequences would occur.
Assuming the plaintiffs had timely filed their cases over the asbestosis, the Court
concluded that the plaintiffs would have, at the time, only been left to speculate on whether they
would actually develop cancer in the future. As a result, plaintiffs would not have been able to
properly maintain a lawsuit at that time based on the mere possibility that they might develop
cancer in the future:
If Glazier or Revard had brought suit within three years of the discovery
of asbestosis and attempted to recover for the likelihood of developing cancer in
the future, either would have been unable to prove with “reasonable certainty”
that he would develop cancer. It has been estimated that approximately fifteen
percent of people with asbestosis later develop pleural mesothelioma. Pierce [v
Johns-Manville Sales Corp, 296 Md 656, 659 n 2; 464 A2d 1020 (1983)], citing
Selikoff, Churg & Hammond, Relation between exposure to asbestos and
1
Plaintiff Creech’s complaint is very rudimentary, alleging only that she suffered “damages.”
-6-
mesothelioma, 272 New England J Med 560, 662 (1965). Similarly, it is difficult
to quantify the additional risk of lung cancer posed by the asbestos exposure
when, as in this case, the victim smoked cigarettes and cigarettes alone are a welldocumented cause of lung cancer. Therefore, it is “highly likely” that in a suit
brought for asbestosis “Johns-Manville would have successfully defended on the
ground that the chance that [the defendant] would develop lung cancer was too
speculative to support a damage award.” Pierce, supra at 666. Even if this
evidence were considered, the award would probably be an amount
commensurate with the probability that the plaintiff would contract cancer, rather
than full damages. See, e.g., Eagle-Picher [Industries, Inc v Cox, 481 So 2d 517,
522; (Fla App, 1985)]. So for Glazier and Revard this is not only their first suit,
but their first opportunity to obtain full and adequate compensation. [Larson,
supra at 317-318 (emphasis added).]
In reaching this conclusion, the Court noted how allowing plaintiffs to sue once they have cancer
would promote efficiency in the judicial system by precluding plaintiffs from protracting “the
suits which are brought for as long as possible in order to see if more serious consequences
develop.” Id. at 318. Although the Court noted it was dealing with the unique circumstances of
asbestos litigation, id. at 319-320, the Court’s decision is valuable guidance on the claims
presented here, where a plaintiff does not allege actual injury because there was no exposure to
or contract of any disease. See Stites v Sundtrand Heat Transfer, Inc, 660 F Supp 1516, 1524
(WD Mich, 1987).
No Michigan decision has addressed the particular facts presented in this case. However,
the Illinois Court of Appeals dealt with a remarkably similar case in Natale v Gottlieb Mem
Hosp, 314 Ill App 3d 885; 733 NE2d 380 (2000). In that case, the defendant utilized an
improperly disinfected endoscope on the plaintiff. Once the defendant discovered the mistake, it
notified all patients upon whom the scope was utilized. Id. at 886-887. The defendant informed
these patients, including the plaintiff, that no other patients appeared to have HIV or any other
infection, and that the risk that any transmission had occurred was very small. Id. at 887. All
patients were offered free blood testing, and the plaintiff subsequently tested negative for
hepatitis and HIV. Id.
After numerous court proceedings, the plaintiff filed an amended complaint alleging, in
part, that he suffered emotional distress damages as a result of a possible exposure to infection.
The trial court dismissed that claim, concluding that the plaintiff had no evidence that he was
actually exposed to an infectious disease. Id. at 887-888. The court affirmed, holding that under
the Illinois Supreme Court’s decision in Majca v Beekil, 183 Ill 2d 407; 701 NE2d 1084 (1998),
which held that absent proof of actual exposure to a disease, the fear of contracting a disease is
too speculative, the plaintiff could not properly establish emotional distress absent proof of
actual exposure:
Here, plaintiff was told that he underwent a colonoscopy with a scope
which was not disinfected per Gottlieb’s protocol. Plaintiff was advised that the
risk of infection was slight, that he should live his life as if infected until testing
proved otherwise. Since all test results were negative, plaintiff has failed to show
any evidence of actual exposure to HIV or any other infectious disease. With no
-7-
evidence of actual exposure, summary judgment was properly granted. [Natale,
supra at 889.]
The majority of courts from our sister states that have decided this issue have similarly
held that emotional distress damages cannot be recovered absent either an actual exposure, or
medical or scientific evidence establishing a substantial likelihood of exposure. See, e.g.,
Pettigrew v Putterman, 331 Ill App 3d 633; 771 NE2d 1008 (2002); Roes v FHP, Inc, 91 Hawaii
470; 985 P2d 661, 666-667 (1999), and cases cited therein; South Central Reg Med Ctr v
Pickering, 749 So 2d 95, 99-100 (Miss, 1999), and cases cited therein. As at least two cases
have concluded, “[t]o allow recovery for emotional injuries and mental anguish, without any
proof whatsoever that [the plaintiff] was actually exposed to HIV . . . is per se unreasonable.”
Russaw v Martin, 221 Ga App 683, 686; 472 SE2d 508 (1996). See, also, Brzoska v Olson, 668
A2d 1355, 1363 (Del, 1995).
In this case, to the extent plaintiffs have alleged that they have suffered emotional distress
or other similar damage because of the possible risk of exposure to either HIV, hepatitis B or C,
or any other infectious disease, they have not stated a viable claim for damages. Indeed, most of
their damage allegations are framed in the “fear” category, i.e., that they are fearful that they
might contract a disease in the future. In fact, one form of requested damage is for “medical
monitoring,” which although not a recognized form of damage, Meyerhoff v Turner Construction
Co, 456 Mich 933; 575 NW2d 550 (1998), reveals that plaintiffs need to monitor their condition
to see if they eventually show signs of contracting a disease.
In light of these allegations, the trial court should have dismissed plaintiffs’ damage
allegations of emotional distress and other similar damages based upon the fear of having been
exposed to HIV, hepatitis B or C, or other such disease.
/s/ Christopher M. Murray
-8-
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