*1 motion, prosecutor’s plain error. posttrial defendant’s amount officers credibility police of the improperly bolstered the comments jurors’ passions. People Threadgill, attempted to arouse the (the (1988) improperly prosecutor jurors by com prejudices of the attempted to arouse the fears trying protect menting police officers are out there jurors jurors could either send the officers and their families and the they they their backs on message up back them or could turn them); People Montgomery,
(1993) (the improperly jurors can prosecutor commented go every day and system police faith in the officers out have jurors). people risk their lives for like the in rebut- majority prosecutor’s concludes that the comments closing argument permissible
tal were since defendant invited prosecution’s by making credibility comments the central issue credibility Although questioned the case. defense counsel of the officers, police through presented counsel did so use of the evidence prosecutor, turn, why at trial. While was entitled to discuss defendant, police officers were more than credible he should have trial, done discussing by arguing so the evidence at danger officers should be put believed because their lives in protect people. impact
I find that the cumulative of these errors denied defen- Accordingly, reasons, dant a fair foregoing respectfully trial. for the I dissent. al., Persons, Similarly DOE
JOHN et on Behalf of Themselves and Situated al., Plaintiffs-Appellants, v. NORTHWESTERN UNIVERSITY et Defendants- Appellees. (2nd Division)
First District No. 1 — 96—0067 Opinion Rehearing July filed June denied 1997. 1997 . *2 Glosen, Chicago, appellants. Donald G. Weiland and Michael both of (Frederic Sidley Austin, Chicago Rea, & J. Artwick and Anne E. counsel), Amy Mayber, Evanston, University, D. of Northwestern appellees.
JUSTICE McNULTY opinion delivered the of the court: *3 fictitiously plaintiffs six named University sued Northwestern and a dental student from Northwestern’s dental school for emotional harm they suffered when Northwestern sent the a letter informing them a participated dental student who in their treat positive ment had human immunodeficiency (HIV), tested for virus (AIDS). the virus that acquired deficiency syndrome causes immune action, Defendants moved to dismiss for failure to state a cause of (735 pursuant to section 2—615 of the Code of Civil Procedure ILCS (West 615(b) 1994)), they separately pur and moved to dismiss 5/2 — (735 619(a)(9) (West 1994)). suant to section 2—619 ILCS 5/2 — appeal judgment Plaintiffs from the trial dismissing court’s the com plaint prejudice. with fictitiously
The six named received various treatments from during several students in Northwestern’s dental clinic 22, July and 1991. On Northwestern sent a letter to all six plaintiffs, along with patients, stating: numerous other
"Recently provid- we learned that dental student involved in ing you positive care to in the Dental Clinic has tested for HIV believe, current and reliable scientific ev- based on most
We idence, you were infected with the HIV that the likelihood extremely All contact with this student is low. virus as result of precautions providing required are to follow persons designed dental care diseases, including prevent the communication of However, precautions strongly we HIV. These recommend that have been taken. you presence be tested virus. University offering Dental free test- The Northwestern School original.) ing (Emphasis in for HIV.” student, identify in letter the infected Because defendants did not may the students have been infected. plaintiffs feared that identity the infected attorneys Plaintiffs’ later determined the student, fictitious name of John Noe. whom then sued under the clinic from June 1990 until Noe worked in Northwestern’s dental electrosurgery reduce Anita July participated 1991. He in Doe’s July August in gums performed and in a root canal on her and 1990. diagnosed participated He Doe’s fractured tooth and in Laurel rays September 1990. He took X of Bertha Doe’s tooth extraction teeth in March 1991. Noe treated John Doe several times over year in the clinic. The last treatment was a tooth clean- course of his Anita, May ing performed on 1991. Laurel and John bled Noe Brian Doe during Noe’s treatments. Noe cemented loose tooth for pressure August and he took Carol Doe’s blood while discuss- February ing hygiene with her in 1991. oral and knew Noe Plaintiffs that both Noe Northwestern by August when he treated Anita positive had tested for HIV denying testing both the presented Doe. Defendants affidavits knowledge, sup relies on this evidence to and the concurrence promptly responsi here acted port its assertion defendants However, merely stated bly. contradict an ultimate fact affidavits Corp. Lyons Savings & complaint. in the See Inland Real Estate Loan, N.E.2d 652 While the evi summary judg might have some relevance to motion dence ment, pursuant to section bearing it no on the motions to dismiss has 853, 856-57, Gearhart, 2 — 615 or 2 — 619. Cioni v. for review of Accordingly, ignore we that evidence N.E.2d 494 posi dismissing complaint. We assume that Noe tested the order test, HIV, prior to positive knew of that tive for and Northwestern August 1990. alleged:
Plaintiffs further *4 fingers of dental trauma to the hands and "Accidental blood during dental performance of invasive practitioners can occur extractions, fillings, drilling, cleaning, teeth procedures such as canals, surgeries.” injections, and other dental root They though neither claimed the traumas could occur even trauma, of the and sometimes patient practitioner nor the knew might patients the occurrence of practitioners conceal from their alleged such trauma. Plaintiffs that some of the students sometimes precautions, gloves. Plaintiffs did proper failed to use all barrier like any any allege of them knew or believed that dental student treating suffered such trauma while them. brought a complaint
Plaintiffs in 12 counts. In the first count they sought persons certification of the class of all who received letter, fictitiously Northwestern’s the six plaintiffs with named representatives. counts, class subsequent plaintiffs separated For all invasively those plaintiffs whom Noe treated from who no received Anita, Laurel, According plaintiffs, such treatment. Bertha and treatment, John Doe invasively received invasive while Noe never invasively plaintiffs charged treated Brian or Carol Doe. The treated (count II), fiduciary duty defendants with breach of inflic- intentional (count (count IV), VI), battery tion of emotional distress common law (count (count VII), XII), fraud consumer fraud breach of contract (count (count X). VIII), negligent and malpractice Brain and Carol (count fiduciary duty III), sued for breach of intentional infliction of (count (count V), IX), emotional distress breach of contract and dental (count XI). malpractice through XII,
In counts II plaintiffs alleged they physi "suffered cal anguish distress and discomfort pain upon and mental learn ing possibility of the of infection with HIV.” Plaintiffs do not HIV, positive them have ever tested for in response request, to defendants’ they the named admitted that never positive tested for HIV. This is evidence of an matter re affirmative claim, argument defeating lated to an properly considered on pursuant motion to dismiss Lustig, to section 2—619. Goldstein v. pre Defendants also sented the only very conclusions of studies that found small chance Although transmission of HIV in the medical course of treatment. plaintiffs in complaint emphasized their that researchers could not rule out the provid of HIV transmission from health care patients, they ers to allege any particular probability did not level of extremely prob transmission. Defendants’ of an evidence small ability properly of such transmission is before the court on review the section 2—619 motion. through
The trial court dismissed counts II XII for failure to al- lege HIV, finding allegation necessary recovery for fear AIDS. While appeal requirement contest do not counts, plaintiffs’ finding to all "[a]s the trial court’s
dispute *5 *** HIV.” the fear of predicated are I denied the motion for class certification count court dismissed action. plaintiffs had no cause of because the named They judgment as to all counts. of the Plaintiffs seek reversal battery action for they stated a cause of argue that have by a infected with HIV. treatment student they never consented to care, of health battery in the course a cause of action for To state plaintiff must *** procedures ***. to medical "a total lack of consent substantially simi privilege limited at least to acts defendants’ is If the defendants plaintiffs consented. to those to which lar substantially given, perform different beyond to went acts, the consent battery.” (Emphasis in theory of they liable under a will be 996, 1012, Goldwasser, 520 3d original.) v. Gaskin N.E.2d explained: Appeals for the Seventh Circuit Court of The United States malpractice cases distinguishes between medical "Illinois law claiming lack of a total alleging consent and those no informed question. Informed procedure [Citation.] to the medical consent obtained duty physician who has concern the consent cases fully procedure to disclose the risks perform a medical consent to negli- as procedure. Such cases are viewed with that associated physician who of consent cases involve gence actions. Total lack consent; patient’s absent patient without undertakes to treat neces- consent, meaningless require the disclosure of risks it to Rather, lack of consent cases sary total to an 'informed’ decision. they unau- involve intentional as batteries because are treated Quandt, Lojuk v. touching person of another.” of the thorized 1983). (7th 1456, 1460 Cir. F.2d they procedures; all of the dental Plaintiffs here consented to Dr. procedures when risks associated with did not know about Almaraz, A.2d 327 329 Md. Faya them. In performed Noe surgery on him (1993), performing sued doctor The court positive. HIV disclosing that the doctor was without for lack claim, holding that cause of action battery "[t]he rejected the bat negligence, opposed in tort for consent is one of informed n.6; n.6, see A.2d at 334 Md. at 450 tery Faya, 329 or assault.” (5th ed. at 120-21 Keeton, Torts & Keeton on § also Prosser W. 1984). of action for stated their cause separately Plaintiffs agree. We obtain the failure to malpractice based on and dental negligence VI, in which of count we affirm dismissal Therefore informed consent. battery. sought recovery for plaintiffs of action for stated a cause argue that have
Plaintiffs also
Deceptive
violation of the Consumer Fraud and
Business Practices
(the Act) (815
(West 1992)), by alleging
Act
ILCS
et
seq.
505/1
rely
deceptive
defendants
intended
on their
failure
deception
inform
of Noe’s HIV status and that the
occurred
Levy
in the course of commerce. See
Siegel
Organization Develop
Co.,
534, 542,
ment
153 Ill. 2d
cause of action for common
(People
law fraud
ex rel. Hartigan v. E&E
Inc.,
Hauling,
473, 490,
153
(1992)),
Ill. 2d
Emotional distress
damage only
constitutes
where the
particularly
distress is
only
severe. "The law intervenes
where the distress inflicted is so
that
severe
no reasonable man could
expected
McGrath,
be
to endure it.”
sug
S.W.2d Joliet, Inc., In Doe v. Surgicare S.E.2d (1994), held that in the court fear of of actual AIDS absence as law.” was a matter of "unreasonable reasoning of In the court criticized the cases Williamson requiring proof exposure: said, law, validly light in the
"It cannot be as matter of puncture knowledge, person that a who receives a wound common suffering unreasonably psy- from medical waste reacts serious AIDS, injury possibility developing contemplating from chic time, longer only period even if for some until it is no reason- able, tests, following negative apprehend series of result.
***
unduly
reach
ought not to be
reluctant to
results
[C]ourts
people
long
with
real
as
as
consonant
the reasonable reactions of
including
principles
preserved,
law are
those that
basic
of tort
reasonably thoughtful
preclude the
of duties that
creation
Williamson,
Super.
291 N.J.
at
defendants would not foresee.”
604-05,
See also 3d at 799-802 punctured sharp on a plaintiff Williamson herself instru- left She know whether the improperly ment in the trash. did not person, instrument an HIV-positive had been in contact with but she that she contracted HIV. The court held: feared universally lay public. is a Under
"[AIDS]
disease
dreaded
circumstances,
matter
cannot be
as a
of law
those
it
concluded
unreasonably
unforeseeably. Fearing
reacted
or
HIV,
injury
that she faced serious
result of
it was
greatly upset during
pe
unreasonable
would be
not
that she
necessary
to obtain medical assurance that
riod of time
was
may very
period
some
It
well be that there is
she was
infected.
*7
receiving puncture
medical waste dur
of time after
a
wound from
range
ing
any person
experience a
of mental reac
which
would
distress,
tions,
anxiety
mere
and
from
to actionable emotional
ought
eligible
compensation
if she meets the
to be
for
therefor
tests,
applying
including
injury
serious
required
standard
upon
claims based
infliction of emotional distress.” William
all
605-06,
son,
Super.
291 N.J.
at
Although persuaded we are of Williamson foreseeably fear person plaintiffs’ a in situation would reasonable HIV, disagree with that might she contracted we that he or have therefore, must, state a complaint com- court’s conclusion that the effect, Williamson, special creates a rule for fear pensable claim. compensation opposed of AIDS as to other fears: that decision allows AIDS, regardless fear of of of for reasonable the remoteness medically possibility contracting verifiable of the disease. This cre special exception general not all ates AIDS to the rule that reason Co., compensable. able fears are See Allen Otis Elevator (1990). In are Illinois reasonable fears compensable severity level of that would not unless reach a be remote, extremely inconsistent with an insubstantial of contracting University Chicago, See disease. Wetherill v. 565 F. of (N.D. 1983). Supp. 1553 Ill.
A
physical impact
injury
who has
and
suffered
due
negligence may
defendant’s
recover
emotional distress that
injury directly
Rhoads,
causes. Carlinville National
Bank
However,
"(1) problem permitting legal harm redress for that is (2) trivial; temporary relatively danger often and that claims (3) imagined; of mental will perceived harm be falsified or and imposing heavy disproportionate unfairness of financial defendant, upon only negligent, burdens conduct whose was consequences appear 'wrongful’ which remote from the act.” W. (5th 1984). Keeton, & Prosser Keeton on Torts at 360-61 ed. § Corgan See v. Muehling, 143 Ill. 2d by
Illinois courts address requiring medically these concerns verifiable manifestations of Corgan, severe emotional distress. See Allen, 183-84, 143 Ill. 2d at In 311-12. 3d at foreseeably fear, experienced distress, physical with manifestations aas result of the defendant’s negligence, but the court held that the severity foreseeable fear distress a degree did not reach justified compensation. Thus, tort all negligently caused fears are compensable. by Corgan particu- concerns raised Keeton and addressed in
larly apply to claims that a negligence defendant’s has caused a plaintiff to fear future illness. concerns lead These should courts recovery compensation such cases to restrict for severe emotional arising substantial, distress from serious fear medi- occasioned cally verifiable, possibility contracting the disease. In Wetherill the court, law, interpreting plaintiff claiming Illinois that a that a found physical impact "a prove caused fear of needed to reasonable cancer fear, high not a degree the feared ill- likelihood” Wetherill, Supp. ness. 565 F. that "the at 1559. court noted *8 48 reasonable injury can be meaningful, for fears of future is
distinction Wetherill, injury relatively low.” such is the likelihood of even where in that emphasized that the The court Supp. F. at 1559. 565 showing they had medical evidence of studies present case could as a result of the defendants’ developing risk cancer an increased of negligence. contracting must be balanced probability of disease
A small contracted to determine probable harm if the disease is against the recovering for alleged adequate grounds for plaintiff a has whether relatively minor emphasize that distress. We severe emotional real, foresee comparable to plaintiffs in Allen are not fears of the however, suffered; AIDS, plaintiffs in this case such as able fear of may compensable if deadly not be fear of disease even a foreseeable unlikely. contingency is too feared sufficiently widespread, and a disease is hysterical fear of Where limited, may etiology plaintiff knowledge concerning its is popular medically emotional distress without foreseeably experience severe contracting risk substantially increased verifiable evidence of recovery fear of disease should held that disease. Most courts have fears, because, as commentators have extend to foreseeable such noted, ignorance about the disease recovery broad rewards such An Note, Compensable Injury: The Fear Disease as its causes. See Phobia, 77 67 St. John’s L. Rev. Analysis Based on AIDS Claims (1993); Maroulis, Recover Emotional HIV-Negative J. Can Plaintiffs AIDS, L. Rev. 225 62 Fordham Their Fear Damages Distress recovery supported to fears accordingly restricted Courts have contracting disease. See an increased risk of by medical evidence of 1559-60; Baptist Wetherill, Vallery at v. Southern Supp. 565 F. (La. Galluchio, 1993); 861, Ferrara v. 2d Hospital, 630 So. (1958); 16, 249, Eagle-Picher 161 N.Y.S.2d N.Y.2d 152 N.E.2d (Fla. 1985); but see Industries, Cox, 528-29 481 So. 2d Inc. (La. Inc., Laboratory, 304 So. Welding Testing Anderson 1974). effectively requires plaintiffs to recovery The restriction on the likelihood by learning they what can about mitigate their fears Thus, the restriction the disease. have contracted recovery aspect plaintiff’s of each injury duty making exertions to render reasonable "active *** wilfulness, allows If, by negligence or he light possible. as loss, enhanced, increased unnecessarily damages to be duty, of his falls performance was
that which avoidable Conditioning v. Gear Co. Culligan Rock River Water upon him.” hart, AIDS they have contracted fear that who We find negligence of a should recover for the defendant’s substantial, medically they reasonably verifi- time which feared reasonable, compensable possibility able AIDS. The ignorance augmentation of that fear fear does not include due concerning reasoning is AIDS and its transmission. We believe this compatible requiring results cases with the of most should, exposure: person while stuck a used needle reason- with ably, contracting AIDS, fear the this reasonable fear is degree compensable, not of a sufficient to be unless the faces *9 as, infection, instance, particularly a risk HIV for substantial plaintiff bodily the learns needle held probably when that the used person Vallery, fluids of a had the who HIV. As court said in 630 So. 2d at 867: *** recognize "To a presence cause of action when the of HIV is (or, stage, clearly at pleading alleged),
not shown the unsound. genuine may specula- Fear in such situations be but it is based on tion rather fact.” than
Accord De Schrager, Super. Milio v. N.J. A.2d The "stoptping] concurrence accuses adopting us of short” and a "lesser than exposure” requirement standard” the "actual the espouses. concurrence The adopted from, standard herein is distinct than, not lesser the "actual exposure” requirement. Under the stan- herein, dard plaintiff stated a proved who has an actual damages will recover no if presents she insufficient evidence that she substantial, feared a medically possibility contracting verifiable AIDS. Under espouses, plaintiff the standard the may concurrence recover an for even without evidence that showing she knew facts possibility contracting substantial the disease. presents concurrence no reason to the believe "actual
exposure” requirement policy addresses relevant considerations adopt. substantial, better than the we particular, test In medi- cally possibility directly degree verifiable test addresses the to which plaintiff’s fears are based speculation public misconceptions or rather than verifiable medical evidence of risk. As the concurrence out, correctly points litigation under adopt, the standard we will opinions focus on differing medically as to level what verified risk qualifies as a possibility contracting substantial AIDS. We believe precisely this is the proper litigation. parties focus should marshal medical evidence of possibility the disease argue and to whether that is so substantial as to merit compensation. The rhetoric of the concurrence would instead focus issue the less informative the courts on litigants
the attention exposure. an actual qualifies as the occurrence of whether pos medically statistical on the verifiable Developing case law convergence a reasonable standard bring should sibilities hardly be more this standard could The results under compensation. applying purportedly the results of cases divergent than have been Products, example, Sage in Burk v. test. For exposure” the "actual (E.D. 1990), improperly where an Inc., Pa. Supp. 747 F. patients stuck the hospital floor with AIDS needle on discarded concerning exposure to any question plaintiff, the court held 2d at 867- Vallery, claim. In 630 So. to defeat the HIV was sufficient patient onto only HIV-positive bled plaintiff alleged allegations suf found the hand. The court plaintiff’s unprotected relief, although did not ficient to state a claim for the need for and the court noted any open sores or cuts that he had 793, 643 Compare Surgicare, also testimony. expert 198-99, at 634-35. 1200; Milio, at 666 A.2d Super. 285 N.J. De N.E.2d the fear has the need for adopt meets The standard we misconceptions, given basis, public not based on genuine test seems exposure,” proposed application of "actual inconsistent application. The concurrence for consistent have a better chance gained by adopting convincing advantage to be no presents requiring plaintiffs requirement rather than exposure” "actual substantial, showed a they knew facts that present evidence that disease. contracting the feared medically possibility of verifiable *10 informing that a dental them Here, letters plaintiffs received HIV. The let- positive tested in their treatment student involved extremely likelihood of an low plaintiffs that the faced ters also said students alleged that some dental Although plaintiffs infection. HIV allege that they did not precautions, proper failed to use sometimes Thus, they received when student bleed. any plaintiff saw dental that the possibility letters, only knew of a remote plaintiffs have, plaintiffs, to the may unbeknown infected with HIV student inadequate precautions, using treating plaintiff, while while bled for com- sufficiently exposed plaintiffs had blood vessels and while adequate reason They alleged no have munication of virus. of infection the likelihood disbelieving statement defendants’ accorded with negative HIV tests extremely Plaintiffs’ was low. probabilities. to fear plaintiffs had reason letter itself shows
Defendants’ However, all rea- HIV. been infected with they might have alleged have not Plaintiffs compensable. are of AIDS sonable fears more than finding they faced support a that could facts extremely contracting of In the of a remote AIDS. absence infection, plaintiffs’ particularly substantial of risk HIV reasonable compensation. enough fears were not severe to warrant tort Plaintiffs legally cognizable damages due to al have not suffered defendants’ distress, leged malpractice, fraud, intentional infliction emotional fiduciary duty or or affirm the trial court’s breaches contract. We trial dismissing complaint. decision those counts of the Because the correctly alleged of ac plaintiffs’ court dismissed the named causes tion, properly class it denied motion for certification I, count action Evans v. dismissed the class count. See International Apartments, Village VI, claim, trial properly battery court dismissed count only stated an action for a failure them to inform risk, proceeding not for with a lack complete Count consent.
XII fails state a claim for violation of the Consumer Act Fraud because the Act apply practice does not to the normal den school’s tistry. The court properly through dismissed II counts V and VII (735 (West XI, 619(a)(9) through pursuant to section 2—619 ILCS 5/2 — 1994)), basis of plaintiffs’ defendants’ affirmative evidence that reasonable fears compensable never attained severity. Because plaintiffs never medically verified, faced a substantial risk of contract ing HIV, they did legally cognizable damages. not suffer In view counts, the dismissal of all correctly other the court dismissed Accordingly, class judgment action count. dismissing we affirm the the complaint entirety. in its
Affirmed.
TULLY, J., concurs. DiVITO, specially
PRESIDING JUSTICE concurring: Although agree I with the result reached majority analysis, disagree with much of its I with the standard it applies compensable. According determine whether a fear HIVof infection is majority, plaintiffs may damages to the "for the time in recover they reasonably substantial, medically pos which feared verifiable sibility majority AIDS.” 289 Ill. 3d at 49. The compatible requiring states that this standard with cases prove to the virus in to recover order *11 infection, based on fear of stops requiring HIV but it short of actual exposure. I write separately because I believe that an "actual exposure” requirement preferable. is
52 majority, plaintiffs’ fears of HIV infection were
According to the
compensation. The
enough to warrant
tort
reasonable but not severe
if
been
majority
plaintiffs’
compensable
that
fears would have
states
infection,” but
risk of HIV
they
particularly
had faced "a
substantial
extremely
remote
they
not face more than an
did
AIDS,
legally cognizable damages.
they did not suffer
agree
I
failed to show
App.
3d at 51. While
compensa
that the
legally cognizable damages, I believe
suffered
proof
infection should
bility of a claim for fear of HIV
depend
actually exposed to the virus.
was
plaintiff must show that HIV was
exposure,
To establish
disease-transmitting
agent and that a medi-
alleged
present
in the
See
transmission
for the virus existed.
cally accepted channel of
269, 275,
Center,
923
122 N.M.
County
v. Lincoln
Medical
Madrid
(1996);
Hospital,
1154,
Vallery
Baptist
v. Southern
1160
see also
P.2d
(La.
1993)
pres-
861,
(plaintiff must show both
App.
2d
867
630 So.
transmission);
v. New York
and a channel of
Brown
ence of the virus
880,
648 N.Y.S.2d
Corp., 225 A.D.2d
City
Hospitals
Health &
(1996)
is, "proof of both
(requiring
886
(in this
transmission of the virus
scientifically-accepted
method of
allegedly
transmit-
puncture)
and that the source of
case needle
(in
HIV-positive
this case the unfortunate
ted blood or fluid was in fact
(Tenn. 1997)
infant)”);
Wells,
(requiring evi-
Bain v.
ported
third district
denied,
793,
(1994),
liet, Inc.,
appeal
N.E.2d 1200
App.
643
(1994),
by
in a
550,
as well as
decisions
Ill. 2d
158
Olson,
See,
A.2d 1355
e.g., Brzoska v.
668
majority
jurisdictions.
(Del.
(1996);
683,
1995);
Martin,
App.
"Because
an
cause of action is based on
potential
injury,
requirement
proof
future
of
of actual
exposure
necessary
ac-
is
to insure that such a cause of
order
reasonably
tion remains within the bounds of what
is considered
possible.
contracting
depends
only upon
of
The fear
AIDS
during
specific
likelihood that
virus was transmitted
incident
upon
but also
develop.
likelihood that
infection
As one
will
noted,
probability
court
the statistical
HIV from
stick,
single
assuming
contaminated,
ap-
needle
the needle was
Thus,
proximately
percent.
exposure
0.3 to 0.5
risk
to HIV
where
previous
the needle cannot
be traced to
user is less than
that, although
mathematically
it cannot be
calculated [citation].”
Brown,
47,
at
225 A.D.2d
See also
Russaw,
668 A.2d at
App.
221 Ga.
at
The court in
v.
K.A.C.
ful would equal restrictions run an risk of compromising the avail ability medical, affordability and malpractice dental and insur ance, care, prescription drugs, medical and dental and blood products. deliberating Juries in fear of AIDS lawsuits would be just likely results, discouraging early as to reach inconsistent res least, olution or settlement of such claims. Last but not the coffers being their emptied pay defendants and insurers would risk suffering many plaintiffs the emotional uninfected exposure AIDS, inadequate or possibly leaving compensa to HIV actually tion for to whom the fatal AIDS virus was ” K.A.C., 559-60, quoting at transmitted.’ 527 N.W.2d Kerins 1062, Hartley, App. Rptr. 4th Cal. Cal. 2d reasons, For these I would require proof pre- of actual as a requisite to recovery cases on a fear based of HIV infection. case, contract,
In this plaintiffs alleged breach breach of fidu- ciary duty, fraud, distress, intentional infliction of emotional and claims, damages plaintiffs al all of these negligence. For
medical
of contract and
infection. For breach
leged
their fears of HIV
were
however,
only for
actions,
these,
is liable
a defendant
tort
such
and is not
proximate result of its conduct
consequences that were the
Guinan,
damages. See Feldstein v.
speculative
liable
(1986); DMI,
Country
In
610, 613,
Inc. v.
Mutual
Although the standard is requirement, I believe that lesser exposure” "actual because, in require proof of actual We should insufficient. benefits, this standard is easier public policy addition to other majority that a should apply. The states and to understand if shows she had of HIV infection she for a fear be able recover "substantial, medically possibility of verifiable of a reasonable fear 49). (289 "actual I endorse the App. 3d at contracting AIDS” to what differing opinions as I fear that standard because exposure” increased will lead to of HIV infection possibility” ais "substantial involving a fear of HIV infec in cases divergent results litigation and tion. to con- particularly helpful requirement exposure”
The "actual this, much of such as where trolling litigation cases should com- they received. We from the letter arise patients taking initiative to advise providers for mend health care By requir- doing so. infection, penalize them for of HIV of a risk law that principle establish exposure, courts ing proof of controlling further notification, is critical timely which encourages 1992) (West 325/5.5(b) (provid- 410 ILCS See also spread of the virus. care health an HIV-infected patients ing notification for the standard, on the with a lesser uncertainty associated provider). The hand, discourage notification. may other reasons, specially I concur.
For these SCHOOL, OF Plaintiff-Appellee, v. THE CITY CITY DAY CHICAGO al., Defendants-Appellants. CHICAGO et Division) (2nd No. 1 — 96—0444 First District Opinion 1997. filed June