Brzoska v. Olson

DUFFY, Justice (Retired),

concurring in part and dissenting:

My views differ in several respects from those stated in the majority opinion and, *1368respectfully, I dissent from much of its analysis and I agree with only one of its conclusions.

This is the first AIDS case of its kind to reach this Court and, unhappily, it involves the relationship between an infected health care provider — a dentist — and his patients. Obviously, that implicates serious and sensitive public policy (probably best determined in the legislative process) requiring a delicate balance between the dentist’s need and opportunity to continue practicing his profession, and the right of patients (the public) to be protected from AIDS infection — which, as the majority states, is invariably fatal. It is this latter fact of life which gives this case both its pain and its special significance.

The litigation arrived here after the Superior Court had entered a summary judgment for defendant — on limited discovery and without trial on any issue.

The majority opinion makes little, if any, attempt to balance or analyze the respective interests of dentist and patient. Rather, its dispositive focus is on so-called “AIDS-phobia” claims which are based on fear of the virus and nothing more. But that is not this case — which is based on what the dentist did and did not do in his patient contacts. And although there were professional guidance and precautionary measures for health care workers to reduce the risk of HIV transmission, these were advisory only. Thus, in the last analysis, Dr. Owens was his own judge of what he should or should not do in his patient contacts. And the evidence certainly suggests that he acted in his own interest.

In this appeal, plaintiffs rely on two legal principles: the law as to battery and as to fraudulent misrepresentation.

As the majority states, a battery “is the intentional, unpermitted contact upon the person of another which is harmful or offensive.” Lack of consent is essential and the contact must offend a reasonable sense of personal dignity. W. Page Keeton, et al., Prosser and Keeton on Torts § 9 (5th ed. 1984); Restatement (Second) of Torts § 18 (1965).

Relying entirely on national statistics of the most general kind, and with the benefit of hindsight, the majority concludes that any fear of contracting AIDS under the facts of this case is per se unreasonable — without “actual exposure” to the disease. Here there is much more than the “phobia” which the majority condemns as arising from ignorance, unreasonable suspicion, general paranoia or fragile sensibility. Indeed, there is an abundance of evidence from which a jury could conclude that the fears of plaintiffs — or some of them — that they may have contracted a fatal disease were reasonable. Consider the following, which is in the record:

• In March 1989, Dr. Owens knew that he was HIV positive; he continued to practice dentistry, including invasive procedures in which patients bled.
• His physical condition deteriorated in mid-1990.
• Thereafter he had open lesions on his face, arms, hands, legs, ankles and elbows; he scratched a lesion on his elbow, causing it to weep. He exhibited body weakness and memory loss.
• On at least one occasion he cut himself while working on a patient.
• In February 1991 Dr. Owens’ own physician recommended that he discontinue practicing. He did not do so.
• Dr. Owens died on March 1, 1991 and promptly thereafter the Delaware Division of Public Health evaluated his practice and records.
• On March 13, 1991, Dr. Paul Silverman, the State Epidemiologist, filed a report, which states in part:
Towards the end of 1990 [Dr. Owens’] illness seriously interfered with his clinical practice. We know this from several sources. Loss of memory, loss of motor skills, dementia. He cut himself at least once, and there are other accounts of problems which could pose a risk to patients. This became most serious during January and February. He did have lesions on his hand and elbow. Although he con*1369sistently gloved, he did not wash between.16

Based on the facts known to Dr. Silverman and the Division, the State took prompt and aggressive action, including the following:

In March 1991, the Division prepared press statements about Dr. Owens, his disease and his patients. News stories about the case appeared in newspapers around the country and on local and Philadelphia television stations. The Division also mailed approximately 2,066 letters, certified, return-receipt requested, to patients of Dr. Owens who had been treated after January 1, 1980. The letter offered, at no charge, testing for the HIV antibody and both pre-test and post-test counseling services. A special telephone number was publicized for patients to call with questions and concerns. Trained counselors were reassigned from other duties to answer the telephone calls.

The concern of the Division was obvious— and reasonable.

I agree that defendant may do what was done here; that is, offer statistical data to show that patient contact by a dentist with AIDS results in transmission of the disease only in a very small percentage of cases and, for that reason (defendant argues), fear of AIDS from such a contact is not reasonable (and thus the contact is not “offensive” within the legal definition of “battery”).

But I do not agree that the statistical data offered in this ease is conclusive or disposi-tive “as a matter of law.”

As the record evidence outlined above shows, plaintiffs have offered evidence to show that the contacts were offensive because the possibility of the transmission of AIDS (at the time of treatment) was greater than a statistical average because of: Dr. Owens’ health, his open lesions and where they were, the stage or progression of his disease at the time of patient contact, the advice given by his own physician to stop treating patients, his casual attitude with respect to washing, and whether or not Dr. Owens complied with the advised precautions.

That evidence, coupled with Dr. William Shaffher’s affidavit17 and the actions taken by the Delaware Division of Public Health, in my opinion, create an issue of fact as to whether plaintiffs’ fears were reasonable. And in the dictionary meaning of the majority’s terminology, a jury could conclude that plaintiffs — or some of them — were exposed to AIDS; that is, they “lay open to harm.” The Random House Dictionary, p. 682 (2nd ed. 1987).18

Finally, as to the battery claim, the majority quotes with approval the standard law on that subject found in both the Restatement (Second) of Torts and in Prosser and Keeton, supra: an actor is liable if he intends to cause an “offensive contact with the person” of another. But the majority creates a special “offensive” requirement for this AIDS case, viz: the contact is not offensive as a matter of law unless it permits “the passage of fluids.”

The majority has concluded also that, on the fraudulent representation issue, defendant is not entitled to a summary judgment. *1370I agree. That issue should simply be remanded for trial.

But the majority, with what seems to be an implicit purpose (whether or not intended) to deny plaintiffs or some of them any meaningful relief, adds a “standing” requirement and an “economic” measure of damages plus comments and rulings as to mitigation, fees paid to Dr. Owens and whether any plaintiffs “were justified in declining free AIDS testing.”

In my view, advice as to these matters is inappropriate on the present record; issues concerning trial evidence on damages, in the first instance, should be decided by the trial judge.

. Dr. Silverman's notes also include the following:

Last few months of [Dr. Owens’] practice— open lesions on ... hands, ... elbow. Itched. Confusion, decreased appetite. Last 8 or 9 months Ron drove him places. Could not remember which tooth, what procedure. Cut himself. Burr got tangled in glove. Advised by [Dr.] Brafsman, family ... not to practice. Brafsman advised to inform [patients]. [...] told us he hallucinated.

. Dr. Schaffner’s affidavit states in part:

4. If infection control procedures are casual, the potential risk of AIDS transmission is higher.
5. It is my understanding that Dr. Owens had lesions on his legs from herpes, which he had shown to many of his patients. He also had similar lesions on his hands.
6. An individual can spread the AIDS virus through open herpes lesions. A physician or dentist should not practice if he has open lesions from herpes, particularly if they are located on the hands.
7. Due to Dr. Owens’ lesions, it was reasonable to suggest that he stop treating patients.

.It also seems to me that any consent given by a plaintiff patient to "contacts” was implicitly and reasonably based on an assumption that the dentist would take necessary precautions to avoid putting the patient to an unreasonable risk of infection from the AIDS virus.