Barrett v. Danbury Hospital

Berdon, J.,

dissenting. This case is not about whether we should recognize a cause of action for so-called AIDS phobia or HIV phobia—cases where a plaintiff claims as his only injury exposure to a person who has the human immunodeficiency virus which causes acquired immune deficiency syndrome. Therefore, this case does not require us to choose between the “actual exposure” test of injury; see, e.g., Carroll v. Sisters of Saint Francis Health Services, 868 S.W.2d 585 (Tenn. 1993); or the “reasonable fear” test of injury. See, e.g., Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993). Nor is this a case for unintentional infliction of emotional distress unaccompanied by physical injury or physical impact upon a plaintiff’s body. See, e.g., Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978). Rather, this is a simple case of medical malpractice in which the plaintiff Allen Barrett (Barrett) suffered a physical impact *266upon his body and contemporaneous emotional distress. The law, under such circumstances, has always allowed such plaintiffs to recover damages for their emotional distress. Whether there is a rational basis for this claim of damages; Petriello v. Kalman, 215 Conn. 377, 380, 576 A.2d 474 (1990); is not an issue that is before us on this appeal.

The sole question in this case is whether, in order to satisfy the necessary elements for a cause of action in negligence, Barrett suffered a legally cognizable injury. In order to determine whether he suffered such an injury, the majority focuses strictly on the plaintiffs’ allegation that the defendants introduced blood into Barrett’s rectum during two rectal examinations. Because the evidence is clear that blood was not introduced into Barrett’s rectum, the majority dismisses the plaintiffs’ claim. Indeed, if this were the only allegation made by the plaintiffs, I would agree with the majority.

This, however, was not the only allegation made by the plaintiffs. The plaintiffs also alleged that the defendants negligently allowed Barrett to sit on a hospital stretcher where the cushion was oozing blood.1 This *267blood flowed out of the cushion and “covered [Barrett’s] backside,” leaving Barrett sitting in a pool of blood.2 Barrett’s affidavit3 and the hospital records fully support these allegations.4 The complaint, therefore, stated a colorable claim for medical malpractice in which the plaintiffs seek as an element of damages compensation for emotional distress.

*268Moreover, these allegations make clear that this is not a case like Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 337, in which we held that a plaintiff may recover for emotional distress even in the absence of physical injury or physical impact upon his body, provided that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Id., 345. On the contrary, in this case, Barrett did suffer a physical impact when his body came into contact with the blood on the stretcher. This court always has allowed a plaintiff to recover for emotional distress as an element of damages when that distress is accompanied by a physical impact which resulted from the defendant’s negligence, without the necessity of proving that the emotional distress was foreseeable.5 See generally Figlar v. Gordon, 133 Conn. 577, 585, 53 A.2d 645 (1947); Orlo v. Connecticut Co., 128 Conn. 231, 235, 21 A.2d 402 (1941); D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed. 1968) § 172; D. Faulkner & K. Woods, “Fear of Future Disability— An Element of Damage in Personal Injury Action,” 7 W. New Eng. L. Rev. 865 (1985).6

*269The impact necessary to support such emotional distress damages “has been found satisfied by the most trivial of impacts.” F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 18.4, p. 686; see Block v. Pascucci, 111 Conn. 58, 64, 149 A. 210 (1930). Indeed, as Professor Keeton points out in his treatise, one court “reduced the matter [of satisfying the requirement of physical impact] to something of an absurdity by finding ‘impact’ where the defendant’s horse ‘evacuated his bowels’ into the plaintiff’s lap.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) p. 364. Surely, the defendants’ negligent act of having Barrett sit on a hospital stretcher which leaked foreign blood and “covered [his] backside” in this blood was a sufficient impact.

I write at length, rather than merely summarily dissenting, because I fear that this holding of the majority, based upon the undisputed facts, can significantly undermine the development of our law on the tort of negligent infliction of emotional distress.

Accordingly, I respectfully dissent.

The complaint alleged in relevant part: “14. There was a duty on the part of the Defendant Hospital, by and through its agents, servants and employees, to exercise that level of care, skill and treatment which is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

“15. Despite the duty owed by the Defendant Hospital to the Plaintiff, Allen Barrett, the Defendant Hospital by and through its agents, servants and employees, committed the following negligent acts and omissions: “(a) Failed to inspect, maintain, clean and repair its equipment.

“(b) Failed to supervise employees charged with inspecting, maintaining, cleaning and repairing its equipment.

“(c) Caused or allowed the stretcher to be in a defective, hazardous and dangerous condition.

“(d) Failed to warn the Plaintiff, Allen Barrett, as to the dangerous, defective, and hazardous condition when it knew, or through the exercise of reasonable care should have known, of said condition.”

The complaint alleged in relevant part: “8. During the course of the examination, it became apparent to the Defendant Doctor that the Plaintiff, Allen Barrett, was sitting in blood and/or a blood-like material (hereinafter ‘blood’) and that the blood covered the Plaintiff’s backside.”

Barrett’s affidavit stated as follows:

“1.1 am over the age of eighteen and believe in the obligation of an oath.
“2.1 am one of the Plaintiffs in the above-captioned case. On June 13, 1990,1 experienced severe pain in the area of my upper abdomen, which I recognized as a gall bladder attack, and came to the Danbury Hospital Emergency Room where I was received as a patient.
“3.1 was examined by Victor Estaba, M.D. When Dr. Estaba and a nurse rolled me over to give me an injection for my pain, Dr. Estaba and the nurse noticed that my backside was covered with blood. Dr. Estaba performed a rectal examination, but he did not find the cause or source of the blood.
“4. My underpants were removed, I was given a ‘johnny coat,’ and clean sheets were put on the stretcher. I was returned to the stretcher. Sitting on the stretcher, I felt moisture on my backside. I noticed a large bloody area on my ‘johnny coat’ and on the sheet covering the stretcher at the location of my buttocks. Dr. E staba performed another rectal examination, but he did not find the cause or source of the blood.
“5. At some point during my examination, I was given an injection in my buttocks.
“6.1 got dressed. I realized that the blood that had covered my backside was not my blood. I removed the sheet from the stretcher and saw blood oozing from the stretcher. The blood was the blood of a prior patient or patients.
“7. When I saw the blood and realized that it had covered my backside and that Dr. Estaba had performed two rectal examinations and introduced the blood into my rectum, I became shocked and distraught and fearful that I might contract the AIDS virus, hepatitis or other blood product transmitted life threatening disease and that I might infect my wife, Mary Barrett.”

The hospital record provided in relevant part: “Blood was found to be leaking through broken vinyl area on stretcher mattress/cushion. The [patient] and his wife noticed this since it permeated to [the] sheet he was laying on!”

The majority incorrectly states that “there was no allegation that [the blood covering Barrett’s buttocks] caused his fear, nor was there any evidence offered by the plaintiffs’ affidavits to suggest that such exposure reasonably could lead to infection with HIV or any other blood-borne disease.” On the contrary, the complaint clearly alleged negligence by the defendants in placing Barrett on the blood laden stretcher and in allowing his backside to be covered in blood; see footnotes 1 and 2 of the dissenting opinion; and also clearly alleged that “[a]s a direct and proximate result of the negligent acts and omissions of the Defendant Doctor, the Plaintiff, Allen Barrett, has suffered and is suffering and will permanently suffer anxiety, fear and mental anguish caused by his belief that he may contract the AIDS virus, hepatitis or other blood product transmitted life threatening disease.”

The majority, in suggesting that I have abandoned the approach of Montinieri, mischaracterizes this dissent. On the contrary, I agree that Montinieri presents a viable rule of law in cases where a plaintiff who has not *269suffered any physical impact or physical injury nevertheless seeks compensation for emotional distress. The facts of this case, however, do not require us to rely on that doctrine, because Barrett suffered a physical impact when he sat in a pool of blood on the stretcher. In other words, as a result of the negligence of the defendants, Barrett suffered a physical impact and accompanying emotional distress. The rule of Montinieri, therefore, does not apply here.

I am concerned that the majority, by relying on Montinieri in this case, may alter a plaintiffs burden of proof in future cases involving emotional distress damages. Montinieri requires a plaintiff who has not suffered any physical impact or physical injury to prove that his emotional distress was foreseeable by the defendant. In cases where the plaintiff has suffered a contemporaneous physical impact or physical injury, however, this is not the law. We do not require such plaintiffs to prove that their emotional distress was foreseeable before allowing recovery. Thus, I am concerned that the majority’s reliance on Montinieri in this case, where Barrett did suffer a physical impact, may inject the foreseeability requirement into all future cases in which a plaintiff seeks to recover damages for emotional distress.