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§47.21 Duty to Warn Patient of HIV Infection

The Case: Amos v. Vanderbilt University , 62 S.W.3d 133 (Tenn. 2001).

The Basic Facts: A patient who became infected with HIV as a result of a blood transfusion during surgery and her husband sued the hospital at which the surgery was performed for wrongful birth of their daughter, negligent failure to warn of the risk for contracting HIV, and negligent infliction of emotional distress.

The Bottom Line:

  • "Mr. and Mrs. Amos were not yet married when Mrs. Amos received her blood transfusion or when, according to the Amoses' experts, Vanderbilt should have notified prior blood transfusion recipients. Vanderbilt therefore contends that it owed no duty to Mr. Amos." 62 S.W.3d at 138.
  • "This Court has recognized that a physician may owe a duty to a non-patient third party if the physician's negligence causes reasonably foreseeable injuries to the third party. Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993) (citing Wharton Transport Corp. v. Bridges, 606 S.W.2d 521, 526 (Tenn. 1980)). As we noted in Bradshaw, other jurisdictions have imposed upon physicians the duty to exercise reasonable care to protect third persons against foreseeable risks associated with a patient's contagious disease. Id. at 871; see also Vallery v. S. Baptist Hosp., 630 So. 2d 861, 868‑69 (La. Ct. App. 1993) (court imposed a duty on behalf of a hospital to promptly warn an employee's spouse of the employee's negligent exposure to HIV because it was 'highly foreseeable' that the employee might be married and have unprotected sexual relations with his spouse). We adopted a similar medical duty to warn identifiable third persons in a patient's immediate family against foreseeable risks attending that patient's noncommunicable disease. Bradshaw, 854 S.W.2d at 872." Id.
  • "'The foreseeable victim is one who is said to be within the zone of danger.' Turner v. Jordan, 957 S.W.2d 815, 819 (Tenn. 1997) (quoting Hamman v. County of Maricopa, 775 P.2d 1122, 1128 (Ariz. 1989)). Unlike Bradshaw, we are faced here with the risk of exposure to a deadly communicable disease. The zone of danger in this case, therefore, is much larger than the zone of danger in Bradshaw. As a result, the identifiable third parties may be extended beyond the patient's immediate family members. 'The imposition of a legal duty reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct.' Id. at 870. It was reasonably foreseeable that Mrs. Amos would one day marry and have a family. Her future husband and daughter were within the class of identifiable third persons at risk for exposure to HIV. Cf. Turner, 957 S.W.2d at 820-21 (imposing a duty on a psychiatrist to take reasonable measures to protect a nurse in the psychiatric unit from the injuries she sustained at the hands of a dangerous patient); Wharton Transport Corp., 606 S.W.2d at 527 (injuries caused when truck collided into rear of family's station wagon were reasonably foreseeable consequence of physician's failure to properly conduct physical examination of truck driver).

    The duty contemplated here is not one to warn Mr. Amos himself of Mrs. Amos's exposure to HIV but to warn Mrs. Amos so that she might take adequate precautions to prevent transmission of the disease to Mr. Amos and their child.FN5 Vanderbilt's breach of that duty caused the reasonably foreseeable injuries suffered by Mr. Amos. We therefore reinstate the trial court's award of damages to Mr. Amos.
    FN5 Unlike the patient with Rocky Mountain Spotted Fever in Bradshaw, a patient with HIV may take precautions to avoid transmitting the disease to others. It therefore is reasonable to require physicians to warn patients exposed to HIV of the potential dangers in order to protect third parties."
    Id .

Other Sources of Note: Isabel v. Velsicol Chemical Co. , 327 F.Supp.2d 915, 920 (W.D. Tenn. 2004) (holding that a claim for negligent infliction of emotional distress should be allowed in cases where the defendant's negligence results in the plaintiff ingesting an indefinite amount of a harmful substance because in such cases, the finder of fact may conclude that the plaintiff has sustained a sufficient physical injury to support an award of damages even if medical diagnosis fails to reveal any other physical injury); Laxton v. Orkin Exterminating Co., Inc., 639 S.W.2d 431 (Tenn. 1982) (holding that plaintiffs parents could recover for their concern and anxiety for welfare of themselves and their infant children after ingesting water contaminated by the defendant); Riley v. Whybrew, 185 S.W.3d 393, 401 (Tenn. Ct. App. 2005) (holding the plaintiff's claim for damages for emotional distress was not a stand-alone claim and the Camper requirement of expert medical or scientific proof was not applicable when the defendant landlord negligently allowed his tenants' to engage in illegal activities).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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