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08/25/94 JANE AND JOHN DOE v. SURGICARE JOLIET

August 25, 1994

JANE AND JOHN DOE, PLAINTIFF-APPELLANT,
v.
SURGICARE OF JOLIET, INC. D/B/A AMSURG, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Will County. No. 92 L 12391. Honorable Herman S. Haase Judge, Presiding

Rehearing Denied September 21, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Present - Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Jane and John Doe filed a complaint alleging medical negligence and negligent infliction of emotional distress against Surgicare of Joliet, Inc. Plaintiffs appeal the trial court's dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1990)) of Count II by Jane and Count III by John, both of which alleged negligent infliction of emotional distress. The trial court found no just reason for delaying enforcement or appeal of its order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). We affirm.

Count II of the Plaintiffs' complaint alleges that on April 21, 1992, Jane underwent surgery at Surgicare of Joliet, Inc. d/b/a Amsurg. Approximately two months later, in June of 1992, Dr. Herbert Svab, Director of Surgicare of Joliet, called Jane and her husband to his office and informed them that during her surgery, a medical technician stuck himself or herself with a needle and used that same needle to administer anesthetic to Jane. Plaintiffs allege that Dr. Svab refused to identify the technician who used the contaminated needle and that Dr. Svab stated that he asked the technician to submit to a test for the AIDS virus and the technician refused. Dr. Svab advised Jane and John that she should be tested for the AIDS virus, HIV.

Count II further alleges that as a result of the defendant's negligence, Jane has had to undergo an AIDS test and will have to undergo additional tests in the future. The complaint additionally alleges that "she has suffered and will continue to suffer severe emotional and mental distress with physical symptoms" due to the fact that she "may have been infected with foreign bacteria or viruses, including but not limited to the AIDS virus and Hepatitis."

Count III of the complaint alleges the same facts as count II on behalf of John Doe. Count III further alleges that after the surgery but before being told about Jane's exposure to the contaminated needle, Jane and John engaged in unprotected sexual intercourse. John claims that he suffers from "extreme and repeated" mental suffering and various physical symptoms and that this distress will continue due to the fact that he may have been infected with "various bacteria, viruses, and especially the AIDS virus."

According to the affidavit submitted by Dr. Svab, Jane agreed to be tested for HIV on July 7, 1992, and Dr. Svab informed her that the test results were negative on July 13, 1992. Dr. Svab further stated that it is current medical knowledge that more than 90% of all people infected with HIV will test positive after three months, and if re-tested 6 months after exposure to HIV, the virus will show up in more than 99% of the cases if HIV had been transmitted.

The trial court granted defendant's motion to dismiss counts II and III of plaintiffs' Second Amended Complaint for negligent infliction of emotional distress, finding that plaintiffs' fears of contracting AIDS are not compensable. Plaintiffs properly pleaded facts establishing a duty owed by the defendants and a breach of that duty. Therefore, we must decide whether plaintiffs pleaded compensable damages proximately caused by the defendant's negligence. Specifically, the issue presented is whether Illinois law allows plaintiffs to maintain an action for negligent infliction of emotional distress based on the fear of contracting the AIDS virus under the facts of this case. This unique set of facts poses a case of first impression in an Illinois appellate court.

In considering a motion to dismiss, the trial court must accept as true all well-pleaded facts in the portion of the complaint being attacked. A trial court should grant a motion to dismiss a cause of action only when "it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover." ( Burdinie v. The Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657, 152 Ill. Dec. 121.) We must determine whether the facts alleged in the complaint, considered in the light most favorable to the plaintiff, establish a cause of action upon which the plaintiffs can recover. Burdinie, 139 Ill. 2d at 504-05, 565 N.E.2d at 657.

The defendant first contends that because plaintiffs did not suffer a "physical impact," they did not allege facts establishing actual exposure to the AIDS virus (virus); thus, the trial court properly dismissed plaintiffs' complaint.

We find, however, that under the facts alleged, Jane Doe was a direct victim of the defendant's negligence and suffered a physical impact upon being stuck with an unsterile needle by defendant's medical technician. See Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602, 158 Ill. Dec. 489 (plaintiff held a direct victim due to sexual contact with negligent psychotherapist); Martin v. McDonald's Corp. (1991), 213 Ill. App. 3d 487, 572 N.E.2d 1073, 157 Ill. Dec. 609 (plaintiffs suffered physical impact from a robber's assault with a gun).

We also find that John Doe may be considered a proper plaintiff either as a direct victim of the defendant's alleged negligence, or as a bystander. (See Kapoulas v. Williams Insurance Agency (7th Cir. 1993), 11 F.3d 1380) (finding driver involved in a traffic accident in which children in other car were killed could recover as a direct victim or a bystander, although evidence did not support finding that his distress resulted from fear for his own safety). John Doe qualifies as a direct victim due to the physical impact he suffered upon having unprotected sexual intercourse with his wife after the medical technician stuck her with the needle but before being informed of the mishap. We acknowledge the requirement that the physical impact be contemporaneous with the occurrence. ( Allen v. Otis Elevator Co. (1990), 206 Ill. App. 3d 173, 177, 563 N.E.2d 826, 150 Ill. Dec. 699.) Under the unique facts of the present case, the defendant's alleged negligence or the "occurrence" caused an ongoing risk. Construing Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1, 75 Ill. Dec. 211, the United States Court of Appeals for the Seventh Circuit recently stated that "although 'contemporaneous' could have several meanings, we interpret 'contemporaneous' in this context to mean that [plaintiff's] emotional distress must have been proximately related either to ...


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