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06/24/97 EILEEN MAJCA AND MICHAEL MAJCA v. STEPHEN

June 24, 1997

EILEEN MAJCA AND MICHAEL MAJCA, PLAINTIFFS-APPELLANTS,
v.
STEPHEN BEEKIL AND E. CHRISTOPHER CARAVETTE, EX'R AND PERSONAL REPRESENTATIVE OF THE ESTATE OF PETER LACHER, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice McNULTY delivered the judgment of the court. DiVITO, P.j., specially concurring. Rakowski, J., specially concurring.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the judgment of the court:

Plaintiffs, Eileen and Michael Majca, sued Dr. Stephen Beekil and the estate of Dr. Peter Lacher for negligence that caused plaintiffs to fear that they may develop acquired immune deficiency syndrome (AIDS). We affirm the trial court decision granting summary judgment.

Eileen worked as office manager for Dr. Jorge Gaffud in 1991. As part of her duties, Eileen cleaned Dr. Gaffud's offices and took out the trash. Dr. Beekil rented part of the office space from Dr. Gaffud. Dr. Lacher agreed to pay Dr. Beekil half of the fees he received for work in the office Dr. Beekil rented in exchange for use of the office space, furniture and supplies one day each week. Dr. Lacher used the office on Mondays, while Dr. Beekil worked there on Wednesdays and Fridays. No one used the office on weekends.

Eileen emptied the garbage when she closed the office on Friday, March 1, 1991. She and Dr. Lacher worked in the office on Monday, March 4, and Dr. Lacher saw two patients that day. Dr. Lacher sometimes spat or blew his nose into tissues or paper towels, and he then threw the tissues or towels into the trash. Neither Eileen nor Dr. Lacher took out the trash on Monday.

Because Dr. Gaffud was on vacation, Eileen worked alone in the office on March 5, 1991. Before taking out the trash, she pushed the overflowing garbage down into the bag. A used scalpel, hidden under tissues in the trash, cut her hand. She saw mucus and dried blood on the scalpel, mingled with her wet blood.

Eileen went to another doctor in the office building, and he told her to go to the hospital. He called the hospital and told the nurse there to check Eileen for hepatitis and human immunodeficiency virus (HIV) infection. Six stitches closed the wound. Eileen left the scalpel in the trash, which she discarded the next day. She took antibiotics and pain killers for several weeks to counteract infection and pain from the wound. Her HIV tests in March and June both came back negative.

Dr. Lacher stopped working at the office in March 1991. On November 1, 1991, Dr. Lacher died from AIDS complications. Eileen first learned that Dr. Lacher had AIDS on the day he died. She testified at her deposition:

"That's when I just lost it.

*** [A doctor] had given me a sedative because I was just so worked up, and I started vomiting."

She took her next scheduled HIV test in December, and that test also showed no evidence of HIV infection.

In March 1992 Eileen and her husband, Michael, sued Dr. Beekil and Dr. Lacher's estate, seeking compensation for Eileen's medical expenses, pain, and her fear that she may contract AIDS, while Michael sought compensation for loss of consortium. They alleged Dr. Lacher's negligent disposal of the scalpel caused their losses, and they sought to hold Dr. Beekil liable as an occupant of the office and as Dr. Lacher's partner. Plaintiffs ...


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