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CDC HIV/AIDS/Viral Hepatitis/STD/TB Prevention News Update
Surgeon Can't Collect for AIDS Phobia

April 13, 1993
American Medical News (04/05/93) Vol. 36, No. 13, P. 15

Even though a surgeon operated on a patient without knowing of the patient's HIV-positive status, he was found by a New York Appellate court to have no claim for emotional distress. The patient was brought to the emergency department by police, who arrested him for burglary. The surgeon conducted two operations without taking precautions such as using a face shield, special gown, and double gloves. After the operations, it was disclosed that the patient had previously tested HIV-positive. The physician claimed in the lawsuit that he and his family developed a serious emotional problem as a result of the potential of HIV infection. The physician sued the county, which employed the police officers, and the hospital. The court stated that there were no undisputed facts. Therefore, the only issue was the interpretation of law to determine whether the surgeon was entitled to a judgment based on the negligent infliction of emotional distress. In addition, the court discovered there was no specific incident in the two operations in which transmission of HIV might have occurred: no torn gloves, pierced skin, or body fluids splashed against a mucous membrane. The physician tested negative for HIV, and his claim was based on the potential of subsequent seroconversion. The court ruled that even if the surgeon did contract HIV from the patient, the police had no duty to tell the surgeon about the patient's HIV status. Since the patient did nothing threatening, he was entitled to the protection of the nondiscriminatory language of the statute that prohibits disclosure of HIV-related information solely to execute "infection-control precautions."