On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-224-95.
Before Judges Stern, Coburn and Collester.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2003
Plaintiff filed this action against defendants Paul Arts, M.D. ("Arts"), the Raritan Bay Medical Center ("Raritan Bay") and others, alleging that, in 1991, following a blood test for the Human Immunodeficiency Virus ("HIV"), he was incorrectly and negligently informed by Dr. Arts that he was HIV-positive when in fact he was not, and that his case was subsequently mishandled by the other defendants. He claimed that Arts deviated from accepted standards of medical care by failing to properly read the test results, misinforming him of the results, and failing to retest him. As a result of Arts' conduct and the subsequent conduct of the other defendants, plaintiff alleged that he became depressed and suffered from physical and psychological injuries, including post-traumatic stress disorder.
All defendants were dismissed before trial, except for Arts and Raritan Bay, a hospital where plaintiff was treated for several years.*fn1 At the trial, the jury found that Arts had"deviate[d] from generally accepted standards of practice in his care and treatment of the plaintiff," and that his deviation was"a proximate cause of plaintiff's damages." The jury also found that Raritan Bay was not negligent. It awarded plaintiff $300,000, and Arts appeals from the resulting judgment and denial of his motion for a new trial. There is no challenge to the judgment in favor of Raritan Bay.*fn2
On this appeal, Arts contends that (1) the jury's verdict was"a miscarriage of justice under the law"; (2) the trial judge"plainly erred by instructing the jurors that if they found Dr. Arts negligent he was responsible for all subsequent damages," and (3) the judge"erred in allowing plaintiff's counsel to use unidentified literature against Arts." We affirm the judgment.
The Human Immunodeficiency Virus ("HIV") causes the Acquired Immunodeficiency Syndrome ("AIDS"). Tests for HIV infection show whether the body has produced antibodies to the virus. In 1991, there was a two-step testing process. If the result from the first test, the Enzyme Immunoassay ("EIA") test (also called the Enzyme Linked ImmunoSorbent Assay or"ELISA" test) was negative, the individual was not considered to be infected. If the result was positive, however, the test was to be readministered. If there was a second positive reaction, the blood sample was to be retested using the Western Blot test. If both the EIA or ELISA and Western Blot test results were positive, the patient was deemed to have been infected with HIV. See, generally, R.F. v. Abbott Laboratories, 162 N.J. 596, 601-02 (1999). The interval between exposure to the virus and the presence of antibodies in the blood was known to vary from two weeks to a year or more.
In May 1990, plaintiff, a thirty-three year old professional photographer, moved in with his girlfriend, S.P., the widow of P.P., who had died from AIDS-related diseases the year before. S.P. had consistently tested negative for HIV and wanted plaintiff to be tested. She set up an appointment with Arts, her family doctor, to test plaintiff for HIV infection. On March 4, 1991, plaintiff went to Arts' office, where Arts' assistant drew a blood sample.
A couple of weeks later, S.P. told plaintiff that Arts had called and said that plaintiff was HIV-positive. S.P. had spoken to Arts twice, and, then, either Arts called a third time or S.P. and plaintiff called Arts back. Plaintiff testified that Arts told him about"the bad news" over the telephone, and asked plaintiff if he had any idea where he contracted the disease. Arts told plaintiff that he and P.P."must have been doing something together," and plaintiff thought this was"an inappropriate statement." Plaintiff stated that Arts also told him that there was no possibility of a"mistake[n]" test result, that the test was performed in two parts with the first showing that he"definitely got it" and the second showing that he"probably got some time left" to live. Plaintiff asked Arts what he should do next, and Arts replied that he did not know, but he would call back. Several days later, plaintiff spoke to Dr. Arts who referred him to Maryann Quadrell at the Robert Wood Johnson Medical Center. Arts told plaintiff"that's where [he] should go for treatment."
The written laboratory result of the HIV test by Arts stated:
TEST OR TEST GROUP WITH A VALUE OUTSIDE THE ESTABLISHED REFERENCE RANGE.
THIS SPECIMEN IS REPEATEDLY REACTIVE BY EIA FOR PRESENCE OF ANTIBODIES TO HIV-1.
WHILE NOT DIAGNOSTIC OF AIDS, THIS RESULT IS INDICATIVE OF POSSIBLE INFECTION AND MAY IMPLY RISK TO DEVELOP AIDS OR ARC. IN ADDITION, THERE IS A LOW INCIDENCE OF BIOLOGICAL FALSE POSITIVE RESULTS. HIV-1 AB. CONFIRM. *(01) ***
NEGATIVE BY WESTERN BLOT FOR THE DETECTION OF SIGNIFICANT DIAGNOSTIC BANDS FOR HIV-1 (P24, GP41, GP120/160).
PLEASE NOTE-AN ASTERISK TO THE LEFT OF THE TEST NAME INDICATES A RESULT OUTSIDE THE REFERENCE RANGE.....
IT IS RECOMMENDED THAT ALL TEST RESULTS BE RELAYED TO THE PATIENT ONLY BY PHYSICIANS OR PERSONNEL SUITABLY TRAINED TO COUNSEL THE INDIVIDUAL AS TO THE SIGNIFICANCE OF THE REPORT. STATE REGULATIONS REQUIRE THE ASSURANCE OF PATIENT CONFIDENTIALITY WITH REGARD TO HIV TESTING. IF THIS SPECIMEN WAS NOT SUBMITTED ENCODED, THE CONFIDEN-TIALITY OF THE TEST RESULTS CANNOT BE ASSURED. IT IS STRONGLY RECOMMENDED THAT SPECIMENS FOR THIS TEST BE SUB-MITTED WITH A PATIENT IDENTIFICATION CODE ONLY. (Emphasis added.)
Arts is a Board-certified family physician. He cared for P.P. before his death. However, Arts was not a specialist in the treatment of HIV or AIDS and treated only two people infected with HIV"for routine medical matters." From 1990 to the time of trial in 2001, he did not recall attending any seminar or lecture on HIV or AIDS. Nor had he read any textbooks or treatises on the subject.
In 1991, it was Arts' practice to telephone his patients to advise them of HIV test results and to place the laboratory report in the patient's file. Arts stated that his medical training gave him sufficient expertise to counsel individuals about the significance of the HIV test results. However, he did not ...