*1 Plaintiffs, al., K.A.C., et
T.M.W., Respondent, Plaintiffs, R.E.S., al., et al., BENSON, Philip D. et Petitioners, Appellants. C4-93-1328, C5-93-1306, C6-93-1203. Nos.
Supreme of Minnesota. Court
Feb. *2 Ellis, Wicka, Jeffrey M. Messerli C.
James Kramer, respondent. Minneapolis, for & Sieben, Emmings, Judy Carey, W. John Ltd., Gross, Holtum, McCoy Carey, & Von *3 K.A.C., Fairfax, et al. for Parmater, Randall, & K. Randall Robert R.E.S., Ltd., Minnetonka, plaintiffs et al. for
OPINION
STRINGER, Justice. T.M.W., Plaintiff-respondent, brought this against Philip Benson and the action Dr. damages alleg- she Palen Clinic emotional upon learning that Dr. edly suffered Benson gynecological two performed upon her had Dr. Benson was infected procedures while immunodeficiency virus the human with (HIV)1 open suffering and was from sores on reject plaintiffs We his hands forearms. allege and hold that a must claims in order establish actual to HIV damages resulting from for emotional a claim contracting a fear of AIDS. T.M.W., including patients, former
Over 50 asserting complaints against defendants filed claims. The district court filed various summary judg- resulting orders series of plaintiffs in favor of because ment defendants allege exposure or direct con- failed Dr. blood or Benson’s HIV-infected tact with opinion, the unpublished fluids. its appeals and re- affirmed court genuine part, holding that a issue versed Schulte, Dr. Hart, fact as Christopher M. J. of material existed J. William Bland, Zurek, placed patients in “zone of Meagher his A. Richard Barbara Benson, No. C6-93- Geer, danger.”2 Minneapolis, appellants. K.A.C. & Acquired geon Report Immune De- acquired im- General's that causes 1. HIV is retrovirus (AIDS). deficiency syndrome invades Syndrome ficiency mune cells, notably T-lympho- replicates in host and cytes, type cells that are essen- of white blood alleges whether the district it is unclear functioning of the human immune tial to the pursuant Minn. dismissed her claims court sys- damage system. The to the human immune 12 or 56. The court R.Civ.P. Minn.R.Civ.P. eventually in- leaves the affected individual tem appeals applied of review for sum the standard creasingly susceptible opportunistic to certain mary judgment the district court consid because fatal, presently no there is AIDS is diseases. beyond the materials and used resource ered See, Levy, e.g., Jay A. Human cure. Immunodefi- agree and pleadings. 56.03. We AIDS, Minn.R.Civ.P. Pathogenesis ciency Viruses and the summary judg apply the standard of review (1989) (explaining infects how HIV JAMA Service, cells); appeal. this Sur- ment on Health human U.S. Public 1203, C5-93-1306, C4-93-1328, September 1993 WL Dr. Benson an consulted 14, 1993). (Minn.App. dermatologist Dec. The court diagnosed other who the le appeals reversed the district court with sions as (Mycobacterium exudative dermatitis arinum) claims, respect permitting to all of T.M.W.’s m an and ordered HIV test. seropositive. T.M.W.’s claims for and intentional Dr. Benson tested HIV distress, battery, negli- infliction of dermatologist reported emotional Benson’s Dr. Ben nondisclosure, gent seropositive and consumer fraud. son’s HIV status the Minneso Health, appeals The court of Department also limited as a matter ta and in October plaintiffs’ of law emotional distress 1990 Dr. Benson met the Minnesota (Board) anxiety” to “a reasonable window of between Board regard of Medical Examiners they time, ing practice. the time learned of Dr. Benson’s illness his medical At that *4 they negative until received HIV guidelines regarding test results. Board had no formal appeal This seropositive followed. HIV providers.3 health-care The Board advised Dr. Benson to wear two pending While this matter was in this pairs gloves caring of patients court, all plaintiffs ultimately but one of the performing to refrain from surgery. He defendants; against only settled their claims complied requirements, with the Board’s Benson, plaintiff T.M.W. remains. K.A.C. v. voluntarily delivering ceased babies. C6-93-1203, C5-93-1306, C4-93-1328, No. (Minn. (order 14, 1994) Board, 1994 WL meeting Oct. After with the Dr. Benson claimants). dismissing remaining performed gynecological We re two exams on verse the of appeals, during decision the court of he time suffered from summary judgment 1990, and reinstate in of favor dermatitis: the first in late October defendants. early January By second in 1991. the end of 1990, Dr. Benson’s dermatitis condition had Philip family practition- Dr. Benson was a significantly healed. Heights er at the Palen Clinic and Palen Early Clinic from until in June 1991. After Dr. performed Benson the second 1989, began losing Dr. weight Benson gynecological while exam January on T.M.W. in following 1991, weight program. a control In Dr. again Benson met with the State developed March a he series of skin Board of Medical Examiners.4 result As a of face, hands, arms, conditions on his meeting and head. that Dr. Stip- Benson entered a into Initially, Board, Dr. Benson self-treated these condi- ulation restricting and Order with the early babies, In tions. Dr. Benson a delivering consulted him from performing from dermatologist diagnosed variety surgery, who of performing procedures invasive disorders, including vitiligo, alopecia skin using ar- in sharp patient’s body instrument eata, cavity. and folliculitis. developed
In June Dr. May Benson nodu- In 1991 the State Board of Medical lar lesions on his In hands and forearms. Department Examiners and the Minnesota of Department designed govern 3. The United States of practice Health of HIV-infected Human Services Centers for Disease Control health-care workers. See Recommendations for (CDC) voluntary guide- issues health-care worker Preventing Transmission Human Immunodefi- designed prevent lines transmission ciency Hepatitis B Virus and Virus to Patients patients during between health-care workers and Procedures, During Exposure-Prone Invasive procedures. invasive medical or dental In RR-8, (CDC), Morbidity Mortality Rep. Wkly. & CDC recommended all health-care workers 1-9 dermatitis, regardless with exudative their status, refrain from direct contact. month, 4. In that same the Minnesota State See, e.g., Recommendations Prevention HIV Board of Medical Examiners first established a Settings, Transmission in Health-Care 36 Morbid- formulating policy Task Force to assist them (CDC) 2S, ity Mortality Wkly.Rep. & 6S respect physicians. to HIV-infected Contro- regard- The CDC also recommends that decisions versy proposed guidelines over the Minnesota ing on restrictions HIV-infected health-care ensued, and the Medical on an Minnesota Association workers occur individual Id. at basis. ratify position 16S. could not on the issue. See July Update Minnesota month Dr. Board Medical after Benson ceased Examiners medicine, practicing guidelines (Spring the CDC issued patients against actions Dr. on whom commenced individual Health contacted 336 pro- more performed one or invasive and the Benson Palen Clinic for various at a he gloved, while but time when cedures claims. None the 325 tested HIV The let- from exudative dermatitis. suffered seropositive.5
ter, by Dr. signed dated June 1991 and practice Dr. Benson his medical ceased Benson, in relevant as follows: stated compli- 1991. He June died of AIDS-related conditions would be Under most there September cations you [of no reason alert Dr. Benson’s T.M.W.’s Claims diagnosis] AIDS since current recommen- physicians suggest dations infected Negligent a. Infliction Emotional pose with the virus or no risk AIDS little Distress However, patients. May their between presented appeal The first issue 21,1991,1 1,1990 February had a skin allege must my fingers. rash on hands and I am send- fluids an individ of HIV-infected you very ing this letter because there is a damages. recover ual to emotional distress possibility you exposed minimal were a claim infliction of To establish through body to the virus fluids AIDS distress, plaintiff must she: emotional show during pro- this from rash certain medical *5 (1) danger within a of physical was zone of rash, I cedures. At the time that had this (2) reasonably impact; feared for her own may I not there have been did realize that (3) safety; and severe emotional suffered any you wearing I risk because was physical with manifesta distress attendant gloves. I aware with am now that even Cross, tions. Stadler v. gloves, extremely an ex- minimal risk still argues although T.M.W. that isted. prove exposure cannot to HIV she Based the most current information occurred, possible was a exposed it is she opinions many about AIDS and the of ex Thus, body fluid transfer. T.M.W. effect you perts, the that have been likelihood alleges proximity her to Dr. HIV- Benson’s with from this infected the AIDS virus put infected her within the “zone fluids How type extremely of is low. danger” physical impact. the of of She offers ever, your peace for of mind and absolute Kuvin, of Dr. affidavit Sanford who recommending safety, you I am be that gloves inadequate testify protection are antibody for to the virus. tested AIDS per against HIV transmission. We are not you This test will tell us whether or not hold, by a argument, this as suaded are infected with the AIDS virus. Because law, for reasons hereaf matter of stated generally people symptoms have no ter, beyond plaintiff “zone of was they first become infected with AIDS purposes a claim of danger” for
virus, you important it is for to be tested. **** infliction of emotional distress. Co., 1991) (Letter City Ry. In Purcell v. Paul St. from Dr. Benson June (1892), court receipt of Minn. this (emphasis original). Following N.W. letter, physical patients impact ruled that actual is Dr. Benson’s over former first (EIA)), notified, zyme immunoassay HIV test and a second the 336 325 obtained 5. Of tests, testing, confirmatory three seven could not be refused test a Western Blot. Used called located, and died of unrelated to one had causes percent than together, these are more 99.0 tests al., A Look- AIDS. See also Richard N. Danila et Ninety-five percent of HIV-infected accurate. Investigation Patients an Back positive of HIV-Infected will HIV within 6 individuals test (1991) Physician, Eng.J.Med. 1406 325 New of the viral transmission. After months date of (case study documenting giving rise to incidents HIV, may positive be individual there an tests litigation). this latency period years physical before a of several developed medically a reliable Scientists have develop. diagnosis symptoms An AIDS AIDS presence antibody produced for the of an test seropositive an tests made when individual have contracted HIV. Blood individuals who severely compromised and has immune extremely accurate. tests for detection of HIV are virus, or one system as a contracts result enzyme- antibody screening exist: a Two tests opportunistic diseases. or more (or (ELISA) assay en- test linked immunosorbent Stadler, necessary objective inquiry. to sustain a claim for emotional 295 N.W.2d at damages. There, plaintiff distress suffered after car miscarriage the cable on which she Thus, permitting recovery negli cases passenger narrowly was a avoided collision gent infliction of emotional distress are char Id. another cable car. The court by a anxiety arising acterized reasonable test, adopted danger” noting the “zone of plaintiff, physical with attendant manifes impending cable car collision “seemed so im tation, being in from a situation where it minent, was caused, nearly and was so that the abundantly plaintiff grave clear that was in attending
incident
ringing
confusion of
personal peril
passengers rushing
specifically
for some
alarm-bells
out of
defined
plaintiff
period
the car
fright
caused
sudden
of time.
Fortune smiled and the im
fear
great
reasonable
death
Here,
immediate
calamity
minent
did not occur.
n n
bodily injury
*.” Id. The zone of dan
quite
situation is
different. The facts as
ger test has
law in
remained the
Minnesota
alleged by T.M.W. indicate that Dr. Benson’s
years.
for over 100
place
actions
did
in “apparent,
never
peril”
contracting
imminent
danger”
We adhered to the
because
“zone
test in
Corp.,
actually exposed
Okrina v. Midwestern
she was not
282 Minn.
to the AIDS
401, 165
(1969),
Purcell,
plain
where
virus.
Langeland v. Farmers State Bank
Tri
of
transmission from mother
child
to
around
mont,
(Minn.1982);
N.W.2d
319
31
see
birth.7
time of
also
v. Washington County,
Leaon
Ninety-nine
percent
reported
of
Whether
AIDS cases
plaintiff
within
danger
intercourse,
a zone
of
is an
are transmitted
sexual
intra-
Update:
Berlin,
6. See
Garry
Universal Precautions
Preven-
G. Mathiason & Steven B.
AIDS
for
tion
Healthcare,
Transmission
Business,
Human
in the
of
of
and Governmental
Immunodeficien-
Virus,
Virus,
cy
Hepatitis B
Other
and
Bloodborne
(1994).
Workplace, C902 ALI-ABA
Pathogens
Settings, Morbidity
in Health Care
(CDC) 377,
Mortality Wkly.Rep.
&
378-79
abuse,
adopt today,
perinatal
requiring
554. The
we
drug
venous
or
transmis-
standard
exposure
allege
sion.8
actual
to HIV as
objective
predicate
recovery,
retains
long recognized
This court has
component
long
this court has
deemed neces-
danger
physi
within the zone of
sary
stability
predictability
ensure
reasonably
impact
cal
fears for his or
who
disposition
of emotional distress claims.
safety during
exposure,
time of
her own
consequently suffers
and who
severe emo
policy
persuasive
We also
several
find
con-
physical injury,
tional
with resultant
distress
siderations articulated
the California
may
recover emotional distress
Appeals
Court of
on remand
Kerins v.
impact
Pur
physical
results.
(Kerins II),
Hartley
Cal.App.4th
cell,
However,
48 Minn.
sure to HIV or or it caused emotional compensation inadequate plaintiffs (4) distress was severe. Hubbard v. actually whom the fatal AIDS was virus Int’l., Inc., 428, Press 330 United N.W.2d transmitted. (Minn.1983). actor 438-39 The must intend (citations proceed to cause severe emotional distress or II, Cal.Rptr.2d Kerins at 33 178-79 omitted). knowledge it substantially with the certain, probable, at highly least that se- Although our decision is based vere emotional distress will occur. Dornfeld law, upon existing Minnesota we case note Oberg, v. 119 majority it with is consistent Here, appeals the court of focused on the jurisdictions that have addressed the issue of outrageous conduct” “extreme element arising damages emotional from a distress dispute and concluded that a factual existed plaintiffs contracting fear of HIV. The ma regard to Dr. Benson’s conduct. jority of courts have decided fear of HIV exposure allege hold the cases must undisputed upon The show that facts exposure to HIV to emotional recover learning of damages.9 seropositive his HIV status Dr.
distress
We concur with the ma
sought
jority
jurisdictions
reject plaintiffs
guidance
Benson
from the
Minnesota
claim in
case.
In an
Board of
regarding
this
action for
State
Medical Examiners
plaintiffs
solely upon
acquiring
based
practice.
fear of
his medical
Dr.
When
Benson
AIDS,
allegation
without
of actual
complied
treated
he
with the restric
HIV,
legally cognizable
no
claim exists
imposed by
tions
the Minnesota Board of
Accordingly,
under
law.
Minnesota
we re
pursuant
Medical Examiners
to the October
appeals
verse
the court
decision and rein
meeting.
1990
no
There is
evidence Dr.
summary judgment
state
favor of defen
recklessly
either
Benson
knew of or
disre
dants,
Philip
Palen
and the
Clin
T.M.W.,
garded a known risk to
nor in fact
ic.
any
Dr. Benson actually pose
did
reasonable
exposing
risk of
T.M.W. to the AIDS virus.
b.
Intentional
Infliction of Emotional
Consequently, we hold that T.M.W. failed to
Distress
establish that Dr. Benson’s conduct was ei
purposes
ther intentional or
To
a claim
intentional
reckless
sustain
distress,
meeting
Dornfeld,
infliction of emotional
must
test.
503
Dornfeld
(1) the
establish:
conduct was extreme and
at 119.
See,
Inc.,
Products,
e.g.,
Sage
v.
Burk
747
Md.
620 A.2d
A few trial
II,
(E.D.Pa.1990);
See,
F.Supp.
employed
e.g.,
Kerins
have
courts
also
this test.
172;
Olsen,
Cal.Rptr.2d
Ins.,
1994 WL
v. New
Brzoska
Castro
York
Misc.2d
Life
2, 1994);
(Del.Super.Ct. May
Doe
v. Sur
(janitor
(Sup.Ct.1991)
pricked
N.Y.S.2d
*8
Joliet, Inc.,
3-93-0765,
gicare
No.
1994 WL
permitted
pursue
needle
discarded
to
claim
461796,
25, 1994);
Aug.
(Ill.App.Ct.
Ordway v.
test);
based on "reasonable fear”
Marchica v.
269,
County Suffolk,
(E.D.N.Y.
154 Misc.2d
N.Y.S.2d
R.R.,
583
F.Supp.
Long Island
810
445
Doe,
(Sup.Ct.1992);
1014
1015,
Doe v.
136 Misc.2d
1993) (permitting
claim
emotional
(Sup.Ct.1987);
561
proce-
of the
Battery
pect of the nature and character
c.
Consequently, plaintiffs
performed.
dure
battery
predicated
is
on
claim for
T.M.W.’s
battery
fail.
claim must
nondisclosure
that Dr. Benson’s
her assertion
any initial
vitiated
consent
of his HIV status
Negligent
d.
Nondisclosure
have
care because she would not
to medical
appeals reversed the sum-
The court of
by Dr. Benson had
to treatment
consented
negli-
mary judgment
T.M.W.’s claim of
as to
infected with HIV.
known he was
she
nondisclosure, holding
that
had
gent
alleges she asked Dr. Benson about
indeed stated a claim for relief.
hands
weight loss and the sores on his
his
arms,
told her the
and that
negligent
A claim for
nondisclo
a
he received
resulted from sunburn
sores
duty
a
to inform
sure focuses on
doctor’s
weight
vacation. The
loss was due
while on
upon certain
patients of the risks attendant
weight
program.
control
Tongen
procedures.
v.
medical
Cornfeldt
(Minn.
could
I),
684,
The district court held
(Cornfeldt
262 N.W.2d
699
allega
battery
her
claim absent
not sustain
prevail
To
on a claim for
to HIV. The court
tions of
plaintiff must demonstrate
nondisclosure
reversed, adopting
reasoning
appeals
person knowing of the risk
a reasonable
Appeals in Kerins
treatment,
Court of
California
would not have consented
I,
subsequently vacated and re
which was
actually
risk
material
undisclosed
Hartley,
Kerins v.
17
versed on remand.
Heupel,
in harm. Kinikin v.
305
ized
(1993),
(Minn.1981).
Cal.Rptr.2d
21
621
Cal.App.4th
589, 595
N.W.2d
vacated,
(Cal.),
reh’g,
rev’d on
when the patients, and do not reach status to we Kohoutek, 383 N.W.2d way she consented. Dr. Ben today. or not that issue Whether *9 at 299. duty legal to disclose his son had legal patients, the breach of Dr. status to his allege T.M.W. does not damages recog compensable duty without procedure performed a different Purcell, 48 by law is not actionable. More nized which she consented. from that Here, 134, the undis N.W. 1034. over, not Minn. 50 Dr. conduct did because Benson’s closed, of HIV did minuscule “risk” risk that T.M.W. significantly increase the plaintiff HIV, in harm to because not materialize be said that it cannot would contract the HIV anti- negative for T.M.W. tested a material as- Dr. Benson failed to disclose 562 Therefore,
body. negli- T.M.W.’s claim for information determining gent nondisclosure fails. consent to treatment. In affirming the trial summary
court’s
negli
dismissal of T.M.W.’s
gent
claims,
battery
e.
Fraud
Consumer
nondisclosure and
I be
misapplied
lieve the court has
the laws of
presented
appeal
The final issue
on
is
negligent
battery
nondisclosure
ig
properly alleged
whether T.M.W.
a claim un-
patient’s rights.
nored the
In ignoring the
Act,
der the Consumer Fraud
Minn.Stat.
patient’s rights, the court excludes from “the
325F.69,
(1994).
§
subd. 1
T.M.W. asserts
decision-making process the most critical
prevaricated regarding
Dr. Benson
his
participant
patient.” Estate
Beh
—the
status,
rely
with the intent
that she
Princeton,
ringer v. Medical Center at
249
upon
explanation
his
and continue under his
(Ct.
N.J.Super.
592 A.2d
1278
Law
asserts,
ap-
care. T.M.W.
and the court of
Div.1991).
peals
325F.69,
§
held that
subd. 1 of the
by
physician
“[A] failure
to disclose a
Consumer Fraud Act does not limit the dam-
may
risk that
in
arise
ages
course of medical
“pecuniary
available to claimant to
loss-
procedure or
negli-
treatment constitutes
es.”
gence.”
Hafner,
Kohoutek v.
383 N.W.2d
provides
per
The Consumer Fraud Act
in
295, 299
When
recog-
we first
act, use,
tinent
employment by
“[t]he
claim,
negligent
nized the
nondisclosure
any person
fraud,
any
pretense,
false
false
Tongen,
v.
262 N.W.2d
Cornfeldt
(Minn.1977)
promise, misrepresentation, misleading state
I),
(Cornfeldt
we declined to
deceptive practice,
ment or
with the intent
provide a
scope
definite standard for the
rely
that others
thereon in connection with
* * n
subject
Instead,
risks
to disclosure.
we ad-
any
enjoina-
the sale of
merchandise
n * *
subject
vanced two rules that were
to later
325F.69,
§
ble
.” Minn.Stat.
subd.
physicians
refinement:
duty
had a
to disclose
(1994). The sale of merchandise includes the
(1) risks of
bodily
death or serious
harm and
services,
private
sale of
citizen is enti
(2)
by
risks that would be disclosed
a skilled
bring
tled to
a civil
action for
practitioner
good standing
under similar
injuries
caused
violation of the Act.
circumstances.
(quoting
Id. at 702
Cobbs v.
325F.68,
(1994);
§
Minn.Stat.
subd.
Minn.
Grant,
505, 515,
8 Cal.3d
Cal.Rptr.
8.31,
(1994);
§
Stat.
subd. 1
Minn.Stat.
(1972)).
time,
P.2d
At the
we felt
(1994).
8.31,
§
subd. 3a
adequately
those rules
insured
enough
would receive
“injury,”
Unable to establish an
information to allow
them
recovery
right
has no
to exercise
basis for
under the
their
to self-determi-
Act,
325F.69, nation
placing
§
Consumer Fraud
without
Minn.Stat.
unreasonable disclo-
requirements
sure
holding
physicians.
subd. 1
In
so
we
Id. at
find it
701-
unnecessary
question
to reach the
of whether
allegation
an
pecuniary
required
loss is
The rules were
years
refined three
later
Act,
under the Consumer Fraud
Minn.Stat. when
again
was
before the court.
Cornfeldt
325F.69,
§
subd. 1
Tongen,
Cornfeldt
(Minn.1980)
II),
(Cornfeldt
we broadened
foregoing
For the
reasons we reverse the
physicians
defined the risks which
have a
appeals
decision of the court of
and reinstate
duty
patients:
to disclose to their
summary judgment
defendants,
in favor of
Philip
Benson and the Palen Clinic.
make out a
[To
claim for
nondis
closure,
duty
show a
must]
n * n
COYNE, J.,
part.
took no
disclose the risk
evidence estab
lishing that a
reasonable
in what
PAGE,
(dissenting).
Justice
physician
knows or should have known
respectfully
I
high-
dissent. This case
patient’s position
to be the
likely
* * n
lights the conflict between a
significance
doctor’s self-
attach
to that risk
ability
interest
his
practice
to continue the
formulating his decision to consent
*10
patient’s right
medicine and the
to full
treatment.
text,
patient’s
safety
following explanation
the
the
fear for her
need
Id. We footnoted
only
subjectively
of this rule:
have been
reasonable.
Thus,
fears,
patient’s “peculiar”
the
when the
opinion
prior
the extent
that our
To
them,
physician
know of
knows or should
physician’s duty
suggests that a
to disclose
duty
physician
create a
on the
disclosure
risks, i.e.,
only
significant
death
extends
to
Kinikin,
regarding those fears.
harm,
hereby
it is
modified.
or serious
heightened
places
at 595. The
burden this
Further consideration of the standard of
physicians
patient
the
on
insures that
re-
disclosure has led us to the conclusion
enough
meaningfully
ceives
information to
objective
the above-stated
standard accom-
right
in
exercise the
to self-determination
professional competence
pa-
modates
See, e.g.,
matters of medical treatment.
Es-
tient self-determination.
Behringer
at
tate
v. Medical Center
added).
(emphasis
clearly
Id. at n.
We
Princeton,
N.J.Super.
A.2d
require phy-
intended to broaden the rule to
(Ct.Law Div.1991).
only
or
sicians to disclose not
risks of death
harm,
risk,
bodily
any
regardless
serious
but
Here, it is evident that there is an issue of
it,
opinion
profession’s
of the medical
jury
fact for the
as to whether Benson should
patient
plaintiffs position
a reasonable
the
particular sig-
have known T.M.W. attached
significant.
would find
nificance to the risk of disease transmission
open
weeping
from his
wounds.
It is
later,
year
Heupel,
One
Kiniken v.
equally
jury
evident that the
should decide
(Minn.1981),
we indicated
person,
position,
a
in her
reasonable
subject mandatory
that the risks
to
disclo-
(1)
have shared her fear.
would
sure include
risks of death or serious
bodily
significant probabil-
harm
are of
which
however,
prevail,
To
a
must also
(2)
practitioner
ity,
risks which a skilled
“first,
prove proximate
a
cause:
had
community
good standing
the
would re-
person
reasonable
known of the risk he
(3):
veal, and
treatment;
not
have consented
a
can
[T]o the extent doctor is or
be aware
second, that the undisclosed risk materialized
patient
particular' signifi-
attaches
that his
Kinikin,
in harm.”
the professionals and other medical misrepresentations. Kinikin, insignificant. consider the risk by N.W.2d at 595. The harm avoided such
disclosure is emotional distress on the patient physician the because the ex- —either plains away worry, the cause of or because the does not consent to the treat- Here, ment. precisely emotional distress is the harm T.M.W. claims she suffered because Thus, re
of Benson’s PETITION FOR nondisclosure. I believe it REINSTATE- MENT was error to the Practice grant to affirm the trial of Law of court’s summary judgment dismissing Frederick D. KRAEMER. neg- T.M.W.’s ligent nondisclosure claim. No. C0-84-1996. battery claim of against physi “[A] lies Supreme Court of Minnesota. performs cian who procedure medical aon patient without his or her consent.” Kohou Feb. (Minn. Hafner, tek v. physician Even where appar the has consent, “[ujnder ently gained however, some ORDER * * * patient’s circumstances the consent WHEREAS, petitioner the Frederick D. can be vitiated.” Id. at Page 299. See W. Kraemer, applied has for reinstatement Keeton, al., et Prosser and Keeton on Torts law; practice the (5th 1984) § at 114 (noting ed. consent WHEREAS, 18(e), Lawyers Rule Rules on void, can be example, where there is Responsibility, Professional requires petition- coercion, mistake, fraud). incapacity, or successfully er complete professional One such circumstance is when the consent responsibility portion of the written examina- through misrepresentation obtained required by tion applicants for admission to (Second) fraud. Restatement of Torts practice by of law the State Board of 892B(2) (1977) § provides: reinstatement; prior Law Examiners If the consenting to the conduct WHEREAS, panel Lawyers by of another is induced to consent a sub- Responsibility Professional assigned Board concerning stantial mistake the nature of petition consideration of the for reinstate- the invasion of his interests or the extent ment recommends that this court dismiss the harm expected to be from it and the petition ground on the petitioner has not mistake is known to the other or is induced requirement successfully satisfied the com- misrepresentation, the other’s the con- pleting examination, the written which has sent is not unexpected effective for the been offered on three filing occasions since invasion or harm. petition reinstatement; his When gynecologi- T.M.W. consented to the examinations, cal clearly she did not antici- IT HEREBY peti- IS ORDERED that the pate any risk of HIV dismissed, transmission. Nor did tion of Frederick D. Kraemer is anticipate suffering she prejudice emotional dis- without being subsequently re- filed; however, tress caused her contracting provided, concern for petitioner HIV from jury the examinations. It is a completion must show successful of the State question as to whether T.M.W.’s consent to Board of Law Examiners’ written examina- gynecological examinations was required applicants induced tion for admission to