On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-7417-02.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Fuentes and Graves.
The principal issue raised in this appeal requires us to determine whether a physician and/or hospital can be held civilly liable in damages to an individual who contracted the human immunodeficiency virus ("HIV") from a former patient who was not informed of the results of an HIV test ordered by the physicians responsible for the patient's care. We now hold that a health care provider, who orders an HIV test for a patient, has a duty to take reasonable measures to notify that patient of the results of the test.
This duty is made even more paramount when the test results indicate that the patient is positive for HIV, because: (1) such a patient may be in immediate need of medical treatment; and (2) from a public health perspective, such patient must also be advised on how to prevent the transmission of the virus to others. A health care provider who violates this duty becomes civilly liable to not only the patient, but to all reasonably foreseeable individuals who contract the virus from the HIV positive patient. Because the Law Division held otherwise, we reverse that aspect of its ruling.
The trial court also dismissed the claims against defendant Dr. Edison Catalano, the director of Cooper Hospital's pathology department, after concluding that plaintiffs' expert report amounted to nothing more than a net opinion. We are in agreement with the trial court in this respect, and affirm that aspect of its ruling.
The legal questions under review here came before the Law Division by way of summary judgment motions filed by a number of the named defendants in the action. We will thus set out the pertinent facts from the limited record developed before the motion judge. Before undertaking to describe these facts, however, we will, in the interest of clarity, first outline the procedural history that led to the filing of this appeal.
Plaintiffs C.W. and E.Y. filed a verified complaint on behalf of themselves and their minor daughter J.W. against Cooper Health System d/b/a Cooper Hospital/University Medical Center ("Cooper Hospital"), and Anthony Sherman, David Gerber, and Ghada Haddad, physicians employed by Cooper Hospital who were responsible for C.W.'s medical treatment. Plaintiffs also named as defendants Dr. Edison Catalano, the head of Cooper Hospital's pathology department, and C.W.'s personal physician, Bruce Cunningham.*fn1
The complaint alleged that defendants had breached a duty of care owed to each of the plaintiffs, by failing to inform C.W. of the results of an HIV test ordered at the time he was a patient at Cooper Hospital. As a result, C.W. was not informed of the need to seek timely medical treatment, and to take precautionary measures to avoid transmitting the virus to E.Y. and their child.
Approximately one year after the joinder of issue, the trial court granted defendants' motion for summary judgment seeking the dismissal of E.Y.'s claims as a matter of law. In granting the motion, the court ruled that defendants did not have a legal duty to inform E.Y. of C.W.'s HIV status. Shortly thereafter, the court granted defendants the same relief with respect to the claims raised on behalf of plaintiffs' minor child. We denied plaintiffs' motion for interlocutory review of these orders.
Defendant Catalano also moved for summary judgment on the ground that plaintiffs' expert report purporting to describe Catalano's duties as head of Cooper Hospital's pathology department was inadmissible as a net opinion. The trial court agreed, finding that plaintiffs had failed to present evidence showing that Catalano had breached a legally recognized duty of care. Thereafter, the motion judge denied plaintiffs' motion for reconsideration.
Approximately six months after this round of motions, Dr. David Gerber, one of C.W.'s treating physicians, entered into a settlement agreement with plaintiffs disposing of all claims against him. The consent order memorializing the settlement agreement indicated that, "Dr. David Gerber only is HEREBY dismissed [from] any and all claims [E.Y.] and [J.W.] may have against him." Despite this ostensibly clear language, the order also contained the following provisions:
[1.] Neither Dr. Gerber nor Dr. Sherman will be placed on the jury verdict sheet and their names will also be removed from the caption;
[2.] Remaining Defendant[s] will not argue [that] Dr. Gerber or Dr. Sherman deviated from accepted standards of care. . . .
We note that the language specifically limiting the relief afforded by the settlement agreement with respect to the claims asserted by E.Y. and the child to Dr. Gerber "only", cannot, on its face, be reconciled with these two provisions. We are satisfied, however, that the parties to the settlement agreement intended that the claims asserted by E.Y. and the child against Dr. Sherman remained viable.*fn2 Less than a month after the Gerber settlement, Cooper Hospital entered into a settlement agreement with C.W. that also included a waiver of the right to appeal the dismissal of C.W.'s claims against Dr. Catalano.
Thus, as this procedural history illustrates, the only claims remaining are those asserted by E.Y. and the child against defendants Cooper Hospital, through its employees Dr. Sherman and Dr. Haddad, and Dr. Catalano individually, in his capacity as head of Cooper Hospital's pathology department.
A. C.W.'s Hospitalization
On August 5, 1994, twenty-nine-year-old C.W. was admitted into Cooper Hospital complaining of confusion, changes in mental status, and progressive lethargy. He was placed in the intensive care unit, where Dr. Gerber was an attending physician. C.W.'s history of drug use involved only marijuana, and the result of a hospital-administered drug-screening test was negative. Dr. Gerber, as well as the interns and residents then employed by Cooper Hospital, initially suspected that any of the following could be among the possible causes for C.W.'s condition: encephalopathy with or without drug use, encephalitis, meningitis, or a psychiatric episode. These physicians also consulted with an infectious disease specialist and a neurologist.
On August 7, 1994, just two days after C.W.'s admission into Cooper Hospital, a resident identified as Dr. Altamura wrote an order for an HIV test. Dr. Gerber countersigned the order, thus indicating his approval. Given his medical condition, C.W.'s mother signed the required consent form for the HIV test. The form read, in pertinent part, as follows:
My doctors have told me that I require HIV antibody testing.
I have read and I understand the information provided in the patient information sheet entitled, "About the HIV Antibody Test." I have had an opportunity to discuss with [blank space where "Dr. Altamura" was written in script] information about the HIV antibody test, its benefits, its risks and any alternative tests. I have had a chance to ask questions and they have been answered to my satisfaction.
I understand that whether my test results are positive or negative, I will be offered counseling about HIV and the meaning of the results. I also understand that my medical care will not be prejudiced by my decision about whether or not to have an HIV antibody test or by the results of the test. I am aware that confidential and anonymous HIV testing is available ...