(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 29, 1997 -- Decided July 21, 1997
HANDLER, J., writing for a unanimous Court.
In this appeal the Court considers the standard for establishing causation for emotional distress
attributable to the fear of contracting AIDS through infection from the HIV virus.
On June 6, 1991, Karen Williamson was pricked with a lancet while she was cleaning a trash can in
the examining room of the offices occupied by Leonard Waldman, M.D., Jeffrey Feldman, M.D., and Jacques
Losman, M.D. A lancet is a surgical knife that is used to prick fingers to acquire blood samples. The lancet
should have been disposed of in a medical waste receptacle, not a common trash can.
After becoming alarmed over the potential of contracting AIDS, Williamson visited her family
physician, Dr. Jerome DeMasi on June 10, 1991. He recommended that she be tested for the HIV virus
annually for a period of seven to ten years. Dr. DeMasi subsequently modified the time period for testing to
a “year or two” but did not inform Williamson until November 1994. Dr. DeMasi told Williamson that the
yearly test was the most decisive in determining whether she had been infected with HIV.
Since the incident, Williamson has been tested for HIV several times: in July 1992, in July 1993 and
in July 1994. Each test has been negative for both HIV and hepatitis. After the 1994 test, Dr. DeMasi told
Williamson that her chances of having contracted HIV from the finger prick were “slim or remote.”
Williamson asserts that as a result of the incident, she has become depressed and has suffered
“lifestyle changes,” including the decision not to have another baby. In addition, she and her husband,
James, have engaged in protected sex since the incident. On May 19, 1993, the Williamsons filed suit against
Drs. Waldman, Losman and Feldman, alleging that the doctors breached their duty to use reasonable care to
inspect and to make the premises reasonably safe. This breach of duty resulted in Williamson suffering
severe personal injuries, great physical and mental pain, loss of enjoyment of life, loss of earning capacity,
and the need for future medical treatments and/or hospitalizations. Williamson's husband makes a claim
for the loss of his wife's services, support and consortium.
After the completion of discovery, the doctors filed motions for summary judgment, which the trial
court granted, dismissing without prejudice Williamson's claim for negligent infliction of emotional distress.
The court found that Williamson had failed to demonstrate that she was exposed to HIV; that, given her
negative test results, her continued fear was “idiosyncratic;” and that, as a result, the doctors' acts were not
the proximate cause of her emotional distress.
On appeal, the Appellate Division reversed and remanded, holding that Williamson was not required
to demonstrate actual exposure to HIV but could recover based on the reasonableness of her fears, which
requires determination by a jury.
The Supreme Court granted the petitions for certification filed by the defendant doctors.
HELD: A person claiming damages for emotional distress based on the fear of contracting AIDS must
demonstrate that the defendant's negligence proximately caused his or her genuine and substantial
emotional distress that would be experienced by a reasonable person of ordinary experience who has
a level of knowledge that coincides with then-current, accurate and generally available public
information about the causes and transmission of AIDS.
1. The majority of jurisdictions addressing this issue impose an objective standard for determining proximate
cause of emotional distress arising from the fear of contracting AIDS. The courts applying this standard
require, as a condition for establishing proximate causation, that the claimant demonstrate actual exposure
and/or prove a medically sound channel of transmission of the HIV virus. In addition, some courts require
that plaintiff show a probability that he or she will develop AIDS. (pp. 6-10)
2. Some jurisdictions have adopted a “reasonableness” standard of recovery for emotional-distress claims
based on the fear of contracting AIDS. That standard allows a plaintiff to recover for emotional distress
without demonstrating either actual exposure to the HIV virus or a viable channel of transmission of the
virus. (pp. 10-12)
3. Policy considerations support the actual-exposure and/or channel-of-transmission objective standard in
order to combat against speculative, unreliable and fraudulent claims. In addition, the objective standard
would serve to counteract general ignorance about AIDS, which fosters hysteria and irrational fears about
contracting the disease, as well as prejudice, stigmatization and discrimination directed at those who have
AIDS. Nevertheless, several considerations support the adoption of the reasonableness standard. A test
based on reasonableness encourages the use of reasonable care in preventing the exposure of another to
HIV, can assure the genuineness of claims, and accommodates the policy of providing redress for harm
suffered because of another. (pp. 12-15)
4. While the reasonableness standard can directly fulfill the basic goals of tort law in the context of claims
based on the negligent infliction of emotional distress arising from the fear of contracting AIDS, it fails to
adequately accommodate the serious public-policy concern about ignorance of AIDS and the resultant social
consequences. Therefore, as a matter of sound public policy, the standard of proximate cause should require
as an element of the test of causation a level of knowledge of the causes, transmission and risks of AIDS.
Such an enhanced standard will serve to overcome and discourage ignorance about the disease and its
resultant social ills. Thus, the reasonableness standard should be enhanced by the imputation to the victim
of emotional distress based on the fear of contracting AIDS of that level of knowledge of the disease that is
then-current, accurate, and generally available to the public. (pp. 15-20)
5. Emotional-distress damages must be based on the fears experienced by a reasonable and well-informed
person and should be limited to the “window of anxiety” (the period after which such a reasonable and well-informed person no longer would experience continuing emotional distress). The window of anxiety in this
type of case is in the range of six months to one year after exposure. Williamson's continued distress is
“idiosyncratic” because it exceeds the emotional distress that would be experienced by a reasonable and
well-informed person. Of course, the distress she suffered during the “window of anxiety” would be
reasonable and could be compensable. (pp. 20-23)
6. The erroneous medical advice given to Williamson by Dr. DeMasi prolonged her reasonable fear of
AIDS, thereby extending her window of anxiety beyond the six-month to one-year period. However, in the
circumstances of this case, the defendant doctors should not be held responsible for subsequent incorrect
advice that was not within the generally accepted medical evidence regarding the effectiveness of HIV testing
and should not, as a matter of law, be deemed reasonably foreseeable by the defendant doctors. Thus,
Williamson's emotional-distress damages arising from the fear of contracting AIDS, proximately caused by
the defendant doctors' negligence as determined by the standard of enhanced reasonableness, does not
include that emotional distress attributable to Dr. DeMasi. (pp. 23-26)
Judgment of the Appellate Division reversing summary judgment in favor of defendants is
AFFIRMED. Judgment of the Appellate Division remanding this matter is MODIFIED in accordance with
this opinion.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-127/128/
129 September Term 1996
KAREN WILLIAMSON and JAMES
WILLIAMSON, her husband,
Plaintiffs-Respondents,
v.
LEONARD WALDMAN, M.D., JEFFREY
FELDMAN, M.D. and JACQUES LOSMAN,
M.D.,
Defendants-Appellants,
and
JOHN DOE, M.D. (a fictitious name),
RICHARD ROE (a fictitious name),
SUE SOE (a fictitious name) and
ABC-XYZ CORP. (a series of
fictitious names),
Defendants.
Argued April 29, 1997 -- Decided July 21, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
291 N.J. Super. 600 (1996).
Hugh Francis argued the cause for appellant
Jacques Losman, M.D. (Francis & Berry,
attorneys; Mr. Francis and Joan B. Lorio, of
counsel; Peter A. Olsen, on the brief).
Robert J. Mormile argued the cause for
appellant Leonard Waldman, M.D. (Mortenson &
Pomeroy, attorneys).
John Zen Jackson argued the cause for
appellant Jeffrey Feldman, M.D. (Jackson &
Buckley, attorneys; Sean P. Buckley, of
counsel; Daniel R. Esposito, on the brief).
David M. Fried argued the cause for
respondents (Blume, Goldfaden, Berkowitz,
Donnelly, Fried & Forte, attorneys).
The opinion of the Court was delivered by
HANDLER, J.
This case is based on plaintiff's complaint for negligent
infliction of emotional distress resulting from her fear of
contracting AIDS. Plaintiff, a cleaning person, was pricked by a
sharp medical instrument that had been discarded improperly in a
general trash receptacle at an office shared by several medical
doctors. Fearing that she had contracted AIDS from the prick,
plaintiff instituted this suit against the doctors to recover
damages for her emotional distress.
The case requires the Court to consider the standard for
establishing causation for emotional distress attributable to the
fear of contracting AIDS through infection from the HIV virus.
More specifically, the issue posed is whether the standard of
causation is based on objective factors, such as the actual
exposure to HIV and/or the exposure to a viable means or channel
of transmission of HIV; or, in the alternative, whether it is
sufficient to demonstrate the reasonableness of the claimant's
emotional distress over the fear of contracting AIDS.
Plaintiff, Karen Williamson, worked for her husband's cleaning business. On June 6, 1991, plaintiff was pricked by a lancet while cleaning a common-trash receptacle in the examining room of offices occupied by defendant doctors, Leonard Waldman, Jeffrey Feldman, and Jacques Losman. A lancet or "short sharp" is "a surgical knife with a small, sharp-pointed, two-edged blade" that is used to prick fingers to acquire blood samples. Stedman's Concise Medical Dictionary 551 (2d ed. 1994).
After being pricked, plaintiff finished up, washed her hands, and went home for the night. On the way home from work, plaintiff went to her sister-in-law's home and, while there, discussed the incident with an acquaintance who was a nurse. As a result of that discussion plaintiff became alarmed, particularly over the potential of contracting hepatitis and AIDS. The nurse informed plaintiff that she should go to the emergency room immediately. Instead, plaintiff made an appointment to see her family physician, Jerome DeMasi.
On June 10, 1991, four days after the incident, plaintiff visited Dr. DeMasi, who recommended that she be tested for the human immunodeficiency virus ("HIV") annually for seven to ten years. (Although Dr. DeMasi subsequently modified the time period for testing to a "year or two," plaintiff was not informed of that until November 1994.) Whether an HIV test was administered during that initial visit is unclear. According to Dr. DeMasi, he did not conduct an HIV test because he believed it
was too soon following the incident to obtain a meaningful
result. Plaintiff avers, however, that she was tested. Dr.
DeMasi informed plaintiff that a test taken a year from the date
of the incident would be most decisive in determining whether she
was infected.
Eight months later, in February 1992, plaintiff returned to
Dr. DeMasi complaining of fatigue. During that visit, blood work
was ordered, without an HIV test, and plaintiff was prescribed
anti-depressant medication.
Since the incident, plaintiff has been tested for HIV
several times, each test showing her to be HIV-negative.
According to plaintiff, she underwent blood tests for HIV and
hepatitis in July 1992, both of which proved negative. Moreover,
she was tested in July 1993, and July 1994; again, both tests
were negative. After the second negative test result, Dr. DeMasi
informed plaintiff that her chances of having contracted HIV from
the incident were "slim or remote."
Plaintiff asserts that as a result of the lancet-stick
incident, she has become depressed and suffered "lifestyle
changes." For example, at the time of the incident, the
Williamsons were contemplating having another child. Because
plaintiff's husband carries a rare blood disorder, known as
neutropenia, which was passed along to their daughter, the
Williamsons originally postponed having more children. According
to plaintiffs, neutropenia prevents a person from properly
fighting infections. Prior to the incident, however, plaintiff's
husband had been taking a drug to control the effects of the
disorder, which gave them hope of having another child. Since
the incident, however, plaintiff has refused to have another
baby, because she fears that the child will be born HIV-positive.
Plaintiff also asserts that she and her husband have engaged only
in protected sexual relations since the incident.
On May 19, 1993, the Williamsons filed a complaint in the
Law Division against defendants Drs. Waldman, Losman, and
Feldman. The complaint alleged that defendants breached their
duty "to use reasonable care to inspect and [to] make the
premises reasonably safe,"See footnote 1 and that because of defendants'
actions, plaintiff suffered "severe personal injuries, . . .
great physical and mental pain. . . [and] loss of enjoyment of
life." Ibid. Moreover, defendants' breach allegedly led to a
loss of earning capacity and resulted in the need for "future
medical treatments and/or hospitalizations." Regarding
plaintiff's husband, James, the complaint alleged that, as a
result of defendants' actions, James was deprived of "the
support, society, . . . consortium, [and] services . . . " of his
wife. Subsequently, during a deposition, Dr. DeMasi described
plaintiff as a "nervous person" who had had several bouts of
depression prior to the incident. Moreover, prior to the
incident, Dr. DeMasi had referred her to other medical
professionals for treatment for depression.
After discovery was completed, defendants filed motions for
summary judgment, which the Law Division granted, dismissing
without prejudice plaintiff's claim for negligent infliction of
emotional distress. The court found that plaintiff had failed to
demonstrate that she was exposed to HIV. Moreover, the Law
Division found that, given her negative test results, her
continued fear was "idiosyncratic" and that, as a result,
defendants' acts were not the proximate cause of her emotional
distress. The Appellate Division reversed and remanded, holding
that plaintiff was not required to demonstrate actual exposure to
HIV but could recover based on the reasonableness of her fears,
which created a jury question.
291 N.J. Super. 600 (1996).
Defendants each filed petitions for certification, which we
granted.
147 N.J. 259 (1996).
A cause of action for negligent infliction of emotional distress involves traditional concepts of duty, breach, and causation. Caputzal v. The Lindsey Co., 48 N.J. 69, 74-75 (1966). To establish liability for this tort, "a plaintiff must prove that defendant's conduct was negligent and proximately caused plaintiff's injuries." Decker v. Princeton Packet, 116 N.J. 418, 429 (1989). Determining defendant's negligence "depends on whether defendant owed a duty of care to the plaintiff, which is analyzed in terms of foreseeability." Ibid.; see Dunphy v. Gregor, 136 N.J. 99 (1994) (allowing emotional distress damages for unmarried cohabitant who witnessed death of fiance after being struck by car); Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 543 (1988) (recognizing emotional distress of parents attributable to hospital's delay in releasing body of their dead son); see also Falzone v. Busch, 45 N.J. 559, 561, 568-69 (1965) (upholding plaintiff's claim for damages based on the foreseeability of the defendant's coming "so close to [her] as to put her in fear for her safety," without actual physical harm). Similarly, to establish that the alleged negligence constitutes the proximate cause of the emotional injury, the emotional distress must be reasonably foreseeable. Compare Carey v. Lovett, 132 N.J. 44, 59 (1993) (permitting mother's claim for emotional distress based on doctor's misdiagnosis of fetus because "the physical and emotional ties between mother and fetus so unite them that a physician should anticipate that any malpractice that adversely affects the fetus will cause emotional distress to the mother") and Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 561 (Law Div. 1985) (recognizing claim for serious emotional distress over fear of cancer, based on exposure to asbestos, because plaintiff's reaction was not unexpected in "normally constituted people") with Decker, supra, 116 N.J. at 431 (denying claim for emotional
distress based on plaintiff's reading erroneous obituary
announcement on ground that serious lasting emotional distress
would not be foreseeable); Buckley v. Trenton Sav. Fund Soc'y,
111 N.J. 355, 368-69 (1988) (denying claim for emotional distress
based on bank's wrongful dishonor of plaintiff's check to former
wife); and Caputzul, supra, 48 N.J. at 76-77 (disallowing claim
for emotional distress because heart attack from consuming brown
water was "idiosyncratic"). In addition, the emotional injury
must be genuine and substantial. See Carey, supra, 132 N.J. at
58; Buckley, supra, 111 N.J. at 365; Strachan, supra, 109 N.J. at
537-38. These principles of causation based on the reasonable
foreseeability of substantial emotional distress attributable to
a defendant's negligence may also be found in the context of
"toxic-tort" cases. E.g., Mauro v. Raymark Indus.,
116 N.J. 126,
132-36, 137-41 (1989) (finding that plaintiff could recover
damages for emotional distress based on reasonable concern that
he or she has enhanced risk of contracting cancer as a result of
exposure to asbestos).
The majority of jurisdictions that have addressed the issue
of the standard for determining proximate cause of emotional
distress arising from the fear of contracting AIDS have imposed
an objective standard. See K.A.C. v. Benson,
527 N.W.2d 553, 560
(Minn. 1995). Most of the courts that apply the objective
standard require the claimant to demonstrate actual exposure to
the HIV virus as a condition for establishing proximate
causation. See Burk v. Sage Products,
747 F. Supp. 285, 286
(E.D. Pa. 1990) (rejecting claim for negligent infliction of
emotional distress because plaintiff nurse, who was pricked by
needle, could not demonstrate that needle exposed her to HIV);
Neal v. Neal,
873 P.2d 871 (Idaho 1994) (rejecting plaintiff
wife's fear-of-AIDS claim against adulterous husband because
plaintiff could not prove that husband or adulterous-partner was
HIV-positive); K.A.C., supra, 527 N.W.
2d at 560 (rejecting
plaintiff's claim for emotional distress because HIV-positive
doctor had worn gloves during gynecological procedure); Brown v.
New York City Health & Hosp.,
648 N.Y.S.2d 880, 886 (App. Div.
1996); Doe v. Doe,
519 N.Y.S.2d 595 (Sup. Ct. 1987); Carroll v.
Sisters of Saint Francis Health Servs.,
868 S.W.2d 585, 594
(Tenn. 1993). Compare Johnson v. West Virginia Univ. Hosp.,
413 S.E.2d 889, 892-95 (W. Va. 1991) (ruling that plaintiff, hospital
security guard who was bitten while attempting to subdue AIDS
patient, could bring claim for emotional distress arising from
fear of AIDS) with Funeral Services by Gregory v. Bluefield
Community Hosp.,
413 S.E.2d 79, 80, 82-84 (W. Va. 1991)
(rejecting mortician's emotional-distress claim arising from
embalming of AIDS-infected corpse because mortician wore
protective gear and did not injure himself during the process),
overruled in part on other grounds by Courtney v. Courtney,
437 S.E.2d 436, 444 (W. Va. 1993).
Some of those courts expressly have added the further
requirement that a plaintiff prove a medically sound channel of
transmission of the HIV virus. See, e.g., Brown, supra, 648
N.Y.S.
2d at 887 (requiring that plaintiff prove not only that
blood or fluid was in fact transferred from HIV-positive person
but also existence of scientifically accepted method of
transmission of the virus); Ordway v. County of Suffolk,
583 N.Y.S.2d 1014 (Sup. Ct. 1992) (denying recovery to doctor who
performed surgery on AIDS-infected patient in absence of proof of
channel of transmission); accord Madrid v. Lincoln County Med.
Ctr.,
923 P.2d 1154 (N.M. 1996) (adopting "pure channel of
transmission" test and ruling that plaintiff who was splashed
with blood while transporting medical samples could recover for
fear of contracting AIDS because blood allegedly made contact
with unhealed cuts on her hand, despite plaintiff's inability to
prove the blood was infected with HIV). In addition to proving
actual exposure and/or a channel of transmission, some courts
require the plaintiff to demonstrate a probability that he or she
will develop AIDS. See, e.g., Kerins v. Hartley,
33 Cal. Rptr.2d 172, 174 (App. Ct. 1994) (Kerins II) ("[E]motional distress
damages due to fear of AIDS [are] legally noncompensable unless
the plaintiff alleges and proves actual exposure, and it is more
probable than not that the plaintiff will actually develop the
disease."); cf. Lubowitz v. Albert Einstein Med. Ctr.,
623 A.2d 3
(Pa. Super. Ct. 1993) (denying ovum-recipient's fear-of-AIDS
claim when donor initially tested HIV-positive but retested
negative).
Some jurisdictions have adopted a "reasonableness" standard
of recovery for emotional-distress claims based on the fear of
AIDS. That standard allows a plaintiff to recover for emotional
distress without demonstrating either actual exposure to the HIV
virus or a viable channel of transmission of the virus.
In Faya v. Almoray,
620 A.2d 327 (Md. 1993), the court
adopted a foreseeable-risk standard, holding that two patients
operated on by an HIV-infected doctor could recover emotional-distress damages, even though they could not prove actual
exposure to, or a means of transmission of, the HIV virus -
there was no evidence that the doctor had cut himself or bled
into the surgical area. The court stated:
[W]e cannot say that appellants' alleged fear
of acquiring AIDS was initially unreasonable
as a matter of law, even though the averments
of the complaints did not identify any actual
channel of transmission of the AIDS virus. [A
requirement] that plaintiffs must allege
actual transmission would unfairly punish
them for lacking the requisite information to
do so.
In Castro v. New York Life Ins. Co.,
588 N.Y.S.2d 695 (Sup.
Ct. 1991), the plaintiff was a cleaning worker who was stuck with
a hypodermic needle improperly discarded in an ordinary waste
container. Plaintiff sued for her alleged emotional distress and
fear of AIDS. The court stated that "[i]f a claim can be tied to
a distinct event which could cause a reasonable person to develop
a fear of contracting a disease like AIDS, there is a guarantee
of genuineness of the claim," without proving either actual
exposure or the existence of a medically sound channel of
transmission. Id. at 697; see Marchica v. Long Island R.R.,
31 F.3d 1197 (2d Cir. 1994) (holding that plaintiff who was stuck by
needle hidden in pile of garbage, could recover under Federal
Employers' Liability Act for emotional distress caused by fear of
AIDS without proving actual exposure to HIV and without
demonstrating medical probability of later developing disease),
cert. denied, sub nom., Long Island R.R. v. Marchica,
513 U.S. 1079,
115 S. Ct. 727,
130 L. Ed.2d 631 (1995); Howard v.
Alexandria Hosp.,
429 S.E.2d 22, 24-25 (Va. 1993) (permitting
patient to recover emotional-distress damages for fear of AIDS
when plaintiff was operated on with unsterilized instruments,
even though there was no evidence that instruments had been used
on HIV-infected person).
Policy considerations support the actual-exposure and/or
channel-of-transmission requirements, because absent such
requirements for establishing proximate cause, speculative,
unreliable and fraudulent claims "could provoke a flood of ill-justified litigation." Brown, supra, 648 N.Y.S.
2d at 886.
Foremost among the policy considerations that are marshalled in
support of the strict objective standard of causation is the need
to counteract general ignorance about AIDS. See Karen L.
Chadwick, Fear Of AIDS: The Catalyst For Expanding Judicial
Recognition Of A Duty To Prevent Emotional Distress Beyond
Traditional Bounds,
25 N.M. L. Rev. 143, (1995) (noting that "a
large portion of the public is either ignorant of how AIDS is
transmitted or chooses not to believe it"). Ignorance about AIDS
fosters hysteria and irrational fears of contracting AIDS, as
well as prejudice, stigmatization and discrimination directed
against those infected with the disease. See Vance A. Fink, Jr.,
Comment, Emotional Distress Damages for Fear of Contracting AIDS:
Should Plaintiffs Have to Show Exposure to HIV?,
99 Dick. L. Rev.
779, 802-03 (1995) ("A plaintiff's anxiety about contracting AIDS
often reflects general misperceptions that exist in our society
about the disease. Public reactions and stigmas associated with
AIDS will likely have some effect on the numbers and types of
claims brought by people who fear contracting AIDS because of
some encounter with an HIV-infected individual. Studies indicate
that stigmatizing attitudes and erroneous beliefs about AIDS and
AIDS patients are still prevalent in our society. One such study
found that a large number of people still believe HIV can be
transmitted through casual contact, such as kissing, sharing
drinking glasses, using public lavatory facilities, being coughed
or sneezed on by an infected person, or through insect bites.")
(citations omitted). Thus, a low threshold for establishing
proximate cause, such as the reasonableness standard, will not
discourage misleading and inaccurate information or counteract
ignorance concerning AIDS. See Brian R. Graves, Fear of AIDS, 3
J. Pharmacy & L. 29 (1994); Fink, supra,
99 Dick. L. Rev. 779;
James C. Maroulis, Note, Can HIV-Negative Plaintiffs Recover
Emotional Distress Damages for Their Fear of AIDS?,
62 Fordham L.
Rev. 225 (1993).
Despite those policy considerations, the objective standard
of causation requiring proof of actual exposure and/or a viable
channel of transmission as a condition of recovery has been
criticized because it does not directly address the need for, and
availability of, accurate information about AIDS, and thus does
not effectively counteract ignorance. See Edward M. Slaughter,
AIDS Phobia: The Infliction of Emotional Distress and the Fear
of AIDS,
16 U. Haw. L. Rev. 143, 160 (1994) (stating in respect
of the actual-exposure requirement, that "[t]he inference is that
a reasonable person of ordinary intelligence would not fear that
he would develop AIDS unless he had proof that he had actually
been exposed to the virus. This is contrary to common
experience, however."); Mandana Shahvari, Comment, Afraids: Fear
of AIDS as a Cause of Action,
67 Temp. L. Rev. 769, 792 (1994)
(observing that it seems "inappropriate" to "measure the
reasonableness of a plaintiff's fear by the quantum of evidence
at the plaintiff's disposal, and label all fear of AIDS in the
absence of proof of HIV exposure to be phobic.").
Several considerations support the adoption of the
reasonableness approach. That approach avoids the harsh and
unfair results that occur from a strict application of the
objective test. See Faya, supra, 620 A.
2d at 336-37; supra at
__-__ (slip op. at 8-10) (cases cited). Moreover, a test based
on reasonableness encourages the use of reasonable care in
preventing the potential exposure of another to HIV. Madrid,
supra, 923 P.
2d at 1163; Bollinger, supra, 16 J. Legal Med. at
419; see also People Express Airlines v. Consolidated Rail Corp.,
100 N.J. 246, 255 (1985) ("Imposing liability on defendants for
their negligent conduct discourages others from similar tortious
behavior."). The reasonableness standard can assure the
genuineness of claims for emotional distress over the fear of
contracting AIDS. Castro, supra, 588 N.Y.S.
2d at 697. In
addition, the reasonableness standard accommodates the tort
policy of providing redress for harm suffered at the hands of
another. See Falzone, supra, 45 N.J. at 566-67 ("[A] court
should not deny recovery for a type of wrong which may result in
serious harm because some people may institute fraudulent
actions.").
In determining the duty of care that is owed a tort victim,
courts are enjoined to consider and weigh matters of public
policy. Butler v. Acme Markets,
89 N.J. 270, 277 (1982). "The
actual imposition of a duty of care and the formulation of the
standards defining such a duty derive from considerations of
public policy and fairness." Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 439 (1993); see Carter Lincoln-Mercury v. EMAR Group,
135 N.J. 182, 194-95 (1994). Moreover, the limit of proximate
cause is, ultimately, an issue of law and similarly entails a
consideration of public policy and fairness. Caputzal, supra, 48
N.J. at 77. "Proximate or legal causation is that combination of
'logic, common sense, justice, policy and precedent' that fixes a
point in a chain of events, some foreseeable and some
unforeseeable, beyond which the law will bar recovery." People
Express, supra, 100 N.J. at 264 (quoting Caputzal, supra, 48 N.J.
at 77-78).
Because the negligent infliction of emotional injury invokes
basic tort principles, see discussion, supra at _-_ (slip op. at
6-8), we must consider, in determining the appropriate standard
for establishing proximate cause, the fundamental policies that
traditional tort doctrine promotes. By that analysis, we
conclude that the reasonableness standard of proximate cause can
appropriately and directly fulfill the basic goals of tort law in
the context of claims based on the negligent infliction of
emotional distress arising from the fear of contracting AIDS.
The reasonableness standard of proximate cause, however,
does not sufficiently accommodate other significant
considerations of public policy that are relevant in determining
legal responsibility for emotional injury attributable to the
fear of contracting AIDS. Ignorance of AIDS and its resultant
social consequences implicate serious public-policy concerns.
The strength of those concerns is evidenced by the prevalence and
persistence of ignorance about AIDS and the extent to which it
dominates the reasoning of the many courts that have adopted the
strict objective test. It is thus appropriate in determining the
standard for establishing proximate causation of emotional
distress over the fear of contracting AIDS that this public
policy concern be carefully weighed. Therefore, as a matter of
sound public policy, the standard of proximate cause should
require as an element of the test of causation a level of
knowledge of the etiology and risks of AIDS that can serve to
overcome and effectively discourage the kind of ignorance that
nourishes the hysteria and irrational fear of contracting AIDS,
which, in turn, perpetuate the prejudice and discrimination that
surround the AIDS epidemic. The reasonableness standard for
determining proximate cause can be formulated to incorporate a
test of causation that requires and presumes that level of
knowledge, thereby serving to overcome concerns about the
widespread and enduring ignorance regarding the disease.
Accordingly, the reasonableness standard should be enhanced by
the imputation to a victim of emotional distress based on the
fear of contracting AIDS of that level of knowledge of the
disease that is then-current, accurate, and generally available
to the public.
In this case, the Appellate Division adopted a
reasonableness standard of proximate cause and held that
plaintiff was not required to establish actual exposure to
recover emotional-distress damages for fear of AIDS. 291 N.J.
Super. at 604-05. The Appellate Division stated:
We know of no reason, given existing
circumstances and the realities of the times,
as well as the policies that underlie tort
law doctrine in this state, to require as a
prerequisite to recovery for infliction of
emotional distress that the plaintiff first
establish actual exposure to the feared
disease. The cause of action is "based on a
reasonable concern that [the claimant] has an
enhanced risk of . . . disease," and a claim
for medical surveillance damages.
[Ibid. (quoting Mauro, supra, 116
N.J. at 137) (citations omitted).]
In considering the reasonableness of plaintiff's fears, the
Appellate Division found that "[i]t cannot validly be said, as a
matter of law, in 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 . . . following a series of
negative test results. . . ." Id. at 604.
The standard of proximate cause, as expressed by the
Appellate Division, relies on "common knowledge" as a basis for
determining the reasonableness of a claimant's fears. Generally,
the reasonableness standard has not required any level of
knowledge beyond that attributable to average persons of ordinary
experience as an element in defining reasonableness. See Kerins
v. Hartley,
21 Cal. Rptr.2d 621, 632 (Ct. App. 1993) (Kerins I)
("It would be unreasonable to assume that at the moment of the
broadcast, [triggering appellant's "initial alarm at hearing news
that her surgeon had risked infecting patients with AIDS"],
appellant had at her fingertips the most recent statistical data
regarding the remote risk of AIDS transmission to a patient by an
HIV-infected surgeon"), vacated,
868 P.2d 906 (Cal. 1994); see
also Faya, supra,
620 A.2d 327 (adopting reasonableness standard
that did not require any level of knowledge in determining
whether plaintiff was reasonable in experiencing emotional
distress over the fear of contracting AIDS).
A reasonableness standard that requires only common
knowledge about AIDS, however, does not address adequately
concerns about the prevalence of misinformation and ignorance,
see Fink, supra,
99 Dick. L. Rev. at 801, and thus serves
indirectly to encourage hysteria as well as prejudice and
discrimination against people living with HIV. The standard has,
therefore, been faulted because it does not confront the need to
overcome ignorance by requiring a higher degree of knowledge of
AIDS. As one commentator has argued:
Decisions like Kerins [I] and Faya are
dangerous because they relieve individuals of
the responsibility of accessing basic
information concerning the transmission of
AIDS and risk reliance on a more subjective
and inconsistent standard of reasonableness.
The lack of HIV education should be
immaterial in evaluating a plaintiff's fear
of contracting AIDS. It is not difficult to
imagine that most individuals lack such
information in their homes. The court's
focus should be on the ready access to
information from external sources. While the
plaintiff in Faya may not have had
statistical information regarding the risk of
transmission associated with invasive
surgical procedures in her home at the moment
she viewed the disturbing television program,
she could have contacted an AIDS hotline,
another physician, or a clinic and obtained
such information with relative ease. Courts
must encourage individuals to take some
responsibility for educating themselves
concerning their health and welfare.
Moreover, the enhancement of the reasonableness standard
through the imputation of a higher level of knowledge as a basis
for recovery for emotional distress based on the fear of
contracting AIDS is not unfair or unduly harsh. As the court in
Castro, supra, observed:
Given the massive informational campaign
waged by federal, state and local health
officials over the last few years in an
effort to educate the public about this
dreadful disease, any reasonable person
exposed to this information who is stuck by a
used and discarded hypodermic needle and
syringe from which blood was apparently drawn
could develop a fear of contracting AIDS.
The medical community has been unwavering in
its view that the HIV virus can be
transmitted through the blood. Castro
testified at her deposition that she had seen
commercials about the disease on television.
She was therefore aware of the possibility of
contracting the disease through HIV
contaminated blood.
Accordingly, we hold that a person claiming damages for
emotional distress based on the fear that she has contracted HIV
must demonstrate that the defendant's negligence proximately
caused her genuine and substantial emotional distress that would
be experienced by a reasonable person of ordinary experience who
has a level of knowledge that coincides with then-current,
accurate, and generally available public information about the
causes and transmission of AIDS.
In denying plaintiff's emotional-distress claim, the trial court held that the lancet-stick incident was not the proximate cause of her distress. In reaching that conclusion, the court applied the actual-exposure test. However, the court also stated:
[A]s this case is currently posited, plaintiff has been tested five time[s] during the last four years for HIV and hepatitis, and all such tests have yielded negative results. She has been informed by her own doctor that after this passage of time her chances of getting HIV are "slim or remote." Defendants' physician expert assures that after tests confirmed no anti-bodies within three months of the event, her chances are "zero[.]" Despite all this, plaintiff claims continued psychic damage and emotional distress. This Court concludes that plaintiff's reaction to favorable tests and her alleged continued distress in the face of same is idiosyncratic and demonstrates her not to be a person of average constitution.
Hence, the court found that plaintiff's continued emotional distress was a highly extraordinary result, and, accordingly, the defendants' breach was not the legal cause of her injuries.
The Appellate Division disagreed that plaintiff's claim for emotional distress was unreasonable as a matter of law. It stated that:
[I]t cannot be concluded as a matter of law that plaintiff reacted unreasonably or unforeseeably. Fearing that she faced serious injury as a result of exposure to HIV, it is 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 medical 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 on infliction of emotional
distress.
The appellate court concluded that:
Plaintiff will be successful only if the jury finds negligence by defendants, and only to the extent it finds serious or substantial emotional injury from reasonably experienced emotional distress . . . including such permanent consequences as may be found, from the date of the puncture incident to whatever point, after medical consultation and tests, a reasonable person would cease to be so emotionally affected by the incident as to be visited with such dire consequences.
Emotional-distress damages must be based on the fears experienced by a reasonable and well-informed person. Thus, that emotional distress should be limited to the "window of anxiety," that is, the period after which such a reasonable and well-informed person no longer would experience continuing emotional distress. In De Milio v. Schrager, 285 N.J. Super. 183, 201 (Law Div. 1995), the court defined the window of anxiety as the period from the time of possible exposure to that point when a plaintiff knows or should know that she was not infected with HIV. That window appears to range from six months to a year after exposure. E.g., Faya, supra, 620 A. 2d at 337; see Lawrence O. Gostin, et al., HIV Testing, Counseling, and Prophylaxis After Sexual
Assault,
271 JAMA 1436, 1439 (1994) (stating that the vast
majority of individuals infected with HIV have detectable
antibodies within three to six months).
Here, because plaintiff repeatedly tested negative for HIV,
her continued distress is idiosyncratic, as found by the trial
court, that is, it exceeded the emotional distress that would be
experienced by a reasonable and well-informed person. However,
the distress she suffered during the "window of anxiety" would be
reasonable, and could be compensable.
The application of the "window of anxiety" test in this case
is complicated, however, by the fact that plaintiff apparently
received incorrect information from a health-care professional.
That circumstance clearly extended plaintiff's emotional distress
beyond the reasonable "window of anxiety." The question, then,
is whether the duration of plaintiff's emotional distress that
extended beyond the "window of anxiety" was proximately caused by
defendant doctors.
Four days after being pricked by the lancet, plaintiff
sought medical advice from Dr. DeMasi. Unfortunately, Dr. DeMasi
misinformed plaintiff that she needed to be tested for HIV
annually for seven to ten years. Although Dr. DeMasi
subsequently modified the period for continued testing to a "year
or two," plaintiff was not informed of that until three years
after the incident. The erroneous medical advice, therefore,
prolonged plaintiff's reasonable fear of AIDS beyond the
acceptable six-month to one-year period. We therefore must
determine whether that "additional" emotional distress should be
attributed to the original defendants or whether the erroneous
medical advice constituted an intervening cause that was not
reasonably foreseeable at the time of the original negligence.
Essentially, we must determine the extent to which the bad advice
can be recognized as a part of the original defendants' duty of
care, the breach of which constituted, as a matter of law, a
proximate cause of plaintiff's continuing emotional distress.
The overriding principle governing the determination of a
duty is the general obligation to avoid foreseeable harm to
others. Carvalho v. Toll Bros. & Developers,
143 N.J. 565, 572
(1996). However, "[a]lthough a foreseeable risk is the
indispensable cornerstone of any formulation of a duty of care,
not all foreseeable risks give rise to duties." Dunphy, supra,
136 N.J. at 108.
Traditionally, our courts have held that an initial
tortfeasor is liable for the results of the medical treatment of
an injured victim. See Ciluffo v. Middlesex General Hosp.,
146 N.J. Super. 476, 482 (App. Div. 1977) (an initial tortfeasor is
potentially liable for all natural and proximate injuries that
flow from initial tort, including the consequences of medical
treatment); Knutsen v. Brown,
96 N.J. Super. 229, 235 (App. Div.
1967) (stating that where a person has suffered personal injury
by reason of another's negligence, the tortfeasor is liable for
any additional harm and expense caused the injured person by the
negligence, mistake, or lack of skill of the attending physician
or surgeon); see W. Page Keeton, et al., Prosser and Keeton on
the Law of Torts § 44, at 308 (5th ed. 1984).
The circumstances in this case, however, militate against
holding the initial tortfeasors liable for the consequences of
the subsequent incorrect medical advice given to plaintiff. Our
adoption of the enhanced reasonableness standard in respect of
causation is based in large part on the policy consideration that
ignorance concerning HIV and AIDS ought to be discouraged to the
greatest extent possible through the tort law. See discussion
supra at __ (slip op. at 12-13). That determination is
inconsistent with the imputation to the original tortfeasors of
the foreseeability that the emotional distress of a claimant
fearing she had contracted AIDS could be prolonged and
exacerbated by incorrect information from a medical professional.
Accord Niemiera v. Schneider,
114 N.J. 550, 559 (1989) (holding
that, under the "learned intermediary" rule, pharmaceutical
manufacturers discharge their duty to warn the ultimate user of
prescription drugs by supplying physicians with information about
the drug's dangerous propensities, because it is expected that
the physician acting as the intermediary between the manufacturer
and the consumer will give correct medical advice); Strumph v.
Schering Corp.,
256 N.J. Super. 309 (App. Div. 1992) (same). To
recognize such foreseeability as a basis for defining the duty of
care and proximate cause would itself encourage medical ignorance
and confusion surrounding the AIDS epidemic. See Shahvari,
supra,
67 Temp. L. Rev. at 803 (stating that to contain the
spread of AIDS effectively, courts have a responsibility to
ensure the accurate circulation of information about the
disease). The information allegedly provided by Dr. DeMasi -
that plaintiff needed to be tested for the presence of HIV for
seven to ten years -- was beyond the pale of generally accepted
medical evidence regarding the effectiveness of HIV testing and
ought not, as a matter of law, be deemed to be reasonably
foreseeable by other health-care professionals.See footnote 2 Thus, the
emotional distress attributable to Dr. DeMasi's bad advice is not
the kind of foreseeable risk that serves to define both the duty
of care and legal proximate cause that should be attributed to
the conduct of the original defendants. Consequently,
plaintiff's damages based on the emotional distress arising from
her fear of contracting AIDS, proximately caused by defendants'
negligence as determined by the standard of enhanced
reasonableness, does not include that emotional distress that is
attributable to Dr. DeMasi.
The judgment of the Appellate Division reversing the summary judgment in favor of defendants is affirmed. The judgment of the
Appellate Division remanding the matter is modified in accordance
with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-127 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
KAREN WILLIAMSON and
JAMES WILLIAMSON, her husband,
Plaintiffs-Respondents,
v.
LEONARD WALDMAN, M.D.,
JEFFREY FELDMAN, M.D. and
JACQUES LOSMAN, M.D.,
Defendants-Appellants,
and
JOHN DOE, M.D., etc., et al.,
Defendants.
DECIDED July 21, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The disposal of lancets and similar medical implements in common-trash receptacles is prohibited by regulation. Thus, this waste must be disposed of in appropriate medical-waste receptacles and must be labeled accordingly. N.J.A.C. 7:26-3A. The relevant regulations include: N.J.A.C. 7:26-3A.10 (segregation requirements); N.J.A.C. 7:26-3A.11 (packaging requirements); N.J.A.C. 7:26-3A.12 (storage requirements); N.J.A.C. 7:26-3A.14 (labeling requirements); N.J.A.C. 7:26-3A.15 (marking requirements); N.J.A.C. 7:26-3A.16 (general requirements). Footnote: 2 In light of the fact that the medical profession's understanding of AIDS is constantly evolving, we do not intend by this opinion to endorse causes of action in emotional distress against doctors who proffer "conservative" advice to a possibly exposed patient. Rather, we recognize that the medical advice offered in this case constitutes advice that falls far outside the parameters of medically accepted information in respect of the incubation period.