dеlivered the opinion of the court: Plaintiff Alicia Pettigrew, a nurse at Michael Reese Hospital, filed a two-count complaint against defendant Dr. Allen Putterman. In the first count, plaintiff alleged that she suffered a laceration to her hand when defendant handed her used surgical scissors in a negligent manner during a surgical procedure. In the second count, plaintiff additionally alleged that she had suffered emotional distress arising from fear of contracting acquired immune deficiency syndrome (AIDS) as a result of defendant’s negligence. Defendant, seeking summary judgment, argued that the “actual exposure” rule announced in Majca v. Beekil,
FACTS
Defеndant, an ophthalmic plastic surgeon, performed surgery on the eyelid of an unidentified 1 patient on November 1, 1994. Plaintiff assisted in that surgery as a scrub nurse. According to plaintiffs first amended complaint, the surgical patient was “suffering from the AIDS infection” at the time of the surgery. After using a surgical scissors to cut the patient’s eyelid, defendant allegedly dropped the scissors onto plaintiffs hand while attempting to hand them to her. The scissors punctured рlaintiffs glove and the skin of her hand. In both counts of her complaint, plaintiff alleged that defendant was negligent in that he:
“(a) Failed to observe the field or area where the scissors were being placed before releasing said instrument;
(b) Failed to place the scissors into the plaintiffs hand before releasing said instrument; and/or
(c) Failed to wait for the plaintiff to grip the scissors before releasing said instrument.”
In count I of her complaint, рlaintiff alleged that, as a result of defendant’s negligence, plaintiff suffered “injuries including but not limited to the laceration to her hand, lost wages, medical expenses, pain and suffering, [and] physical and emotional trauma.” In count II of her complaint, plaintiff additionally alleged that, as a result of defendant’s negligence, plaintiff “suffered emotional distress from having been exposed to the AIDS virus.”
In his original answer to plaintiffs first amended complаint defendant admitted that “he performed a surgical procedure with the assistance of the plaintiff *** on a patient who subsequently was determined to be HIV positive.” Defendant later moved for leave to amend his answer, alleging that through discovery he had learned both that “the surgical patient was never diagnosed as being HIV positive at the time of the occurrence” and further that there was no evidence of HIV-positive test rеsults sufficient to establish a diagnosis of HIV infection as defined by section 697.100 of the Illinois Administrative Code (77 Ill. Adm. Code § 697.100 (2001)). After the trial court granted defendant’s motion, defendant filed an amended answer denying that the surgical patient was either suffering from the AIDS infection or HIV positive.
In response, plaintiff submitted a redacted perioperative nursing record indicating that the surgical patient had a history of intravenous drug abuse. In her deposition, plaintiff testified that, following the accident, she went to the employee health service at Michael Reese Hospital, where her blood was drawn for HIV testing pursuant to hospital policy. Plaintiff underwent three further HIV tests at six weeks, six months, and one year after the accident. Each test was negative for HIV Pursuant to hospital policy, the surgical patient’s blood was also drawn and tested immediately following the accident. Plaintiff testified that Nurse Paulette Abadiano of the employee health service informed plaintiff two days later that the surgical patient had tested positive for HIV Plaintiff consulted with her primary care physician, who recommended that plaintiff take AZT, a drug commonly prescribed for treatment of HIV infection. Dr. Scott McCallister, an infectious disease specialist who consulted with plaintiff through the employee health service, prescribed AZT to plaintiff.
Plaintiff also submitted the deposition testimony of both defendant and Dr. Fred Bodker, a surgical fellow who assisted at the surgery in question. During his deposition, defendant testified that he had told his wife that an accident had occurred involving plaintiff and that the surgical patient “turned out to be HIV positive.” Defendant later testified that both Nurse Abadiano and Dr. Bodker had informed him that the surgical patient was HIV positive. Dr. Bodker was asked at his deposition, “Did any of you know at the time of the actual operation the HIV status of this patient?” Dr. Bodker responded, “It seems to me we knew he was positive.”
Finally, plaintiff submitted the deposition testimony of Nurse Abadiano confirming that Dr. McAllister prescribed AZT for plaintiff. Nurse Abadiano testified thаt she did not inform plaintiff that the surgical patient was HIV positive but rather that the ELISA results for the surgical patient were positive for HIV Nurse Abadiano could not remember whether she told plaintiff that the surgical patient’s blood sample had been sent for confirmatory Western Blot testing. Nurse Abadiano thought she had told plaintiff that Western Blot results were still pending. Defense counsel introduced a packet of documents identified as exhibit 1. Nurse Abadiano identified a document included in the packet as a form regularly used in the employee health department at Michael Reese Hospital. A portion of the form, which
At his deposition, Dr. McAllister explained that testing for HTV infection involves three components. First, a sample is subjected to a screening test such as the ELISA test for HIV If the ELISA test returns a positive result, a second ELISA test is run to ensure that the first result was accurate. After two positive ELISA results, a confirmatory test such as the Western Blot is run to confirm a diagnosis of HIV infection. Dr. McAllister testified that without a positive confirmatory test result, no diagnosis of HIV infection would be made. A report of the surgical patient’s test results is included as an exhibit to Dr. McCallister’s deposition. The report indicates two positive ELISA results but that the sample submitted for Western Blot testing was insufficient and therefore that test was inconclusive.
Prior to ruling on defendant’s motion for summary judgment, the trial judge entered an order granting plaintiff leave to file a motion to compel the surgical patient to prеsent his medical records for in camera inspection. Plaintiff filed such a motion; however, defendant objected, noting that the surgical patient was not a party to the lawsuit and the trial court was without authority to compel the patient to disclose his medical records. The trial court denied the motion to compel.
In ruling on defendant’s motion for summary judgment, the trial judge noted:
“This Court finds that the above claims [for fear of contraсting AIDS] are based on hearsay statements made by nurses and physicians. There is no foundation in fact before this Court which supports Plaintiffs belief and there is no evidence to confirm that the patient is HIV positive. While the Court is sympathetic to Plaintiffs situation, the law is clear that the Court cannot force the patient to divulge his medical status.
Hence, as stated in both Majca and Natale [v. Gottlieb Memorial Hospital,
The trial judge entered summary judgment in favоr of defendant. Plaintiff appeals.
ANALYSIS
Summary judgment is proper if the pleadings, depositions and admissions on file, along with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c)
I. Negligence
While neither the parties nor the trial judge addressed this faсt, we note that count I of plaintiffs complaint does not involve a claim for fear of contracting AIDS. Rather, count I alleges damages in the form of “injuries including but not limited to the laceration to her hand, lost wages, medical expenses, pain and suffering, [and] physical and emotional trauma” resulting from defendant’s alleged negligent handling of surgical scissors. Although defendant’s motion sought summary judgment on plaintiffs complaint without distinguishing between counts I аnd II, the argument presented in that motion is directed solely at plaintiffs claim in count II for fear of AIDS. Defendant asserts no basis for granting summary judgment as to count I. Indeed, it is apparent from the record that genuine issues of material fact remain as to whether defendant handled surgical scissors negligently. Summary judgment on this count was clearly improper.
II. Fear of AIDS
The Illinois Supreme Court in Majca conclusively ruled that proof of actual exposure to HIV is required in order to sustain a cause of action for fear of acquiring AIDS. Majca,
Defendant first responds that plaintiff admitted that no genuine issue of fact remains as to actual exposure by commenting in her brief before this court that “the fact is that the tests were inconclusive and the HIV status of the patient is not known.” Viewed in isolation, plaintiffs comment could indeed be read as a concession that no genuine issue of material fact remains. We note, however, that immediately prior to the comment defendant quotes, plaintiff explicitly argues that “there is, at least, a question of fact as to whether [the surgical] patient was HIV positive.” Plaintiff goes on to discuss the evidence tending to suggest the surgical patient’s HIV-positive status. Read in context, a fair reading of plaintiff’s comment must be construed as conceding only that conflicting evidence was presented as to the HIV status of the surgical patiеnt.
Defendant next argues that, absent a positive confirmatory test result, any conclusion that the surgical patient is HIV positive is unsupported by fact. In his motion for summary judgment, defendant argued that because section 697.100(b) of the Illinois Administrative Code requires two positive screening test results followed by a positive confirmatory test result before a sample can be diagnosed as HIV positive (77 Ill. Adm. Code §§ 697.100(b)(2), (b)(3) (2001)), proof of actual exposure rеquires
In Majca, our supreme court consolidated for purposes of appeal two cases in which plaintiffs sought recovery for fear of contracting AIDS. In the first of these cases, Eileen Majca sued the estate of Dr. Peter Lacher and two other defendants after Majca was injured by a scalpel which Dr. Lacher had allegedly disposed оf improperly in the medical office where Majca was employed. Majca testified that she observed dried blood and a clear, mucus-like substance on the scalpel. After receiving stitches in her hand, Majca discarded the scalpel with other office waste. Majca never questioned Dr. Lacher about the scalpel nor did she attempt to discover whether Dr. Lacher knew who had used the scalpel or on whom it had been used. Dr. Lacher later died of an AIDS-related illness. Majca,
In support of her complaint, Majca submitted the affidavit of Dr. Linda Pifer, a microbiologist with experience in the fields of HIV infection and AIDS. Dr. Pifer opined that: (1) Majca was exposed to HIV; (2) that Majca was at risk of contracting HIV; and (3) that Majca’s fear of contracting HIV was reasonable. Dr. Pifer stated that “whether or not HIV [was] on the scalpel is beside the point and immaterial to [Majca’s] fear of becoming HIV positive.” Pursuant to Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)), the trial court struck Dr. Pifer’s affidavit as conclusory and granted summary judgment to defendants because Majca could not prove actual exposure to HIV.
On review, our supreme court held that “[w]ithout proof of actual exposure to HIV a claim for fear of contracting AIDS is too speculative to be legally cognizable.” Majca,
The instant case is factually distinguishable from both of the underlying sеts of facts in Majca. Here, plaintiff has alleged both that the surgical patient was HIV positive and that plaintiff was exposed to the blood of that patient in a manner capable of transmitting the virus. Although
In support of her position, plaintiff first points to her own deposition testimony that Nurse Abadiano told plaintiff that the surgical patient was HIV positive. The statement allegedly made by Nurse Abadiano to plaintiff, however, was inadmissible hearsay and cannot be considered in addressing defendant’s motion for summary judgment. See Pavlik v. Wal-Mart Stores, Inc.,
Plaintiff further notes that Dr. Bodker testified at his deposition that he believed he knew before the surgery that the surgical patient was HIV positive. Dr. Bodker’s deposition testimony as to his own knowledgе of his patient’s HIV status is properly considered in addressing a motion for summary judgment. 735ILCS 5/2 — 1005(c) (West 2000) (court considers “pleadings, depositions and admissions on file, along with any affidavits” in resolving motion for summary judgment).
Further, the record reflects that defendant admitted in his original unverified answer to plaintiffs first amended complaint that the surgical patient was HIV positive. The admissions of a party contained in an unverified original pleading that has been superseded by an amended pleading are not binding judicial admissions; however, such admissions may be used at trial as evidence of the matter admitted. Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc.,
In addition, defendant testified in his deposition that he told his wife that the surgical patient “turned out to be HIV positive.” While defendant’s out-of-court statement to his wife is hearsay, a party’s own hearsay statement regarding a material fact is admissible as an exception to the hearsay rule and is competent evidence against that party. Pavlik,
Finally, plaintiff presented evidence that employee health service records reflect that two ELISA screening tests of the surgical patient’s blood were positive for HIV The statements contained in these documents are admissible under Supreme Court Rule 236(a) as writings or records made in the regular course of business (145 Ill. 2d R. 236(a)). We need not determine whether screening test results which have not been corroborated by a confirmatory test result would alone be sufficient to establish actual exposure to HIV We hold only that positive HIV screening test results
Although defendant accurately notes the absence of positive confirmatory HIV test results, our supreme court in Majca did not require a plaintiff to provide direct evidence of specific test results in order to sustain a claim for fear of contracting AIDS. See Majca,
Although defendant may be able to establish at trial that the belief of both Dr. Bodker and defendant that the surgical patient was HIV positive was based on diagnostically insufficient data, the basis for the doctors’ statements was not explored during the doctors’ depositions. Defendant presented no evidence that the surgical patient was not HIV positive. Construing defendant’s admissions, Dr. Bodker’s testimony, and the two HIV-positive screening test results liberally in favor of plaintiff (Schmitt,
CONCLUSION
For the foregoing reasons, the judgment of the circuit court granting summary judgment in favor of defendant is reversed and the cause remanded for further proceedings.
Reversed and remanded.
COUSINS and TULLY, JJ., concur.
Notes
Although the identity of the surgical patient is known to the parties, section 9 of the AIDS Confidentiality Act prohibits the disclosure of either: (1) the identity of a рerson upon whom an HIV test is performed; or (2) the results of an HIV test in a manner which permits identification of the subject of the test. 410 ILCS 305/9 (West 2000).
The screening test utilized in the instant case is known as the “Enzyme-linked Immunosorbent Assay” (ELISA). See 77 Ill. Adm. Code § 697.100(a)(1) (2001) (identifying ELISA as an approved screening test).
The “Western Blot Assay” (Western Blot) was used as a confirmatory test in the instant case. See 77 Ill. Adm. Code § 697.100(a)(2) (2001) (identifying the Western Blot as an approved confirmatory test).
Defendant cites section 697.100 of the Illinois Administrative Code (77 Ill. Adm. Code § 697.100 (2001)) in the “Statutes Involved” portion of his brief, but provides no argument regarding the relevance of this regulation.