Legal Forecast: "Zone of Danger" For NEID Claims May Get Second Look

Hedgepeth v. Whitman Walker Clinic, No. CA-6244-05 (D.C. October 1, 2009)

The Court of Appeals for the District of Columbia held that a patient cannot recover for the negligent misdiagnosis of the Human Immunodeficiency Virus ("HIV"), when the patient was not placed in a "zone of physical danger" as a result. The Court of Appeals affirmed the Superior Court's grant of summary judgment in favor of Defendant Whitman Walker Clinic ("Clinic").

On December 13, 2000, Appellant received an HIV test after he learned that his girlfriend was being treated for HIV. Blood was drawn at the Clinic and sent to American Medical Laboratories, Inc. for testing. Appellant's test results were negative. However, the Clinic erroneously interpreted the results, and informed the Appellant he was HIV-positive. It was undisputed that Appellant was never HIV-positive.

Until the Appellant underwent a second HIV test five years later, the Appellant continued to believe he was HIV-positive. Appellant alleged that he grew very depressed and that his depression affected all aspects of his life. Appellant lost his job, attempted suicide, and started using illegal drugs heavily. He became estranged from his family and his relationship with his daughter suffered. Appellant developed an eating disorder and engaged in "protected sex" with an HIV-positive woman "because there was no reason for him to live."

Appellant learned that he was not HIV-positive after he visited the Abundant Life Clinic in mid-2005 for a second HIV-test. Thereafter, he filed suit against the Clinic claiming negligent infliction of emotional distress ("NIED"). The lower court granted summary judgment for the Clinic because there was no evidence the Appellant was in a "zone of physical danger."

The zone of physical danger test requires that the plaintiff be placed in physical danger as a result of the defendant's negligence, but stops short of requiring a direct physical impact. District of Columbia case law has carved out the parameters for this test. For example, the zone of danger test was satisfied when a plaintiff feared she had consumed worms after she saw worms in her food, most of which she had already consumed. Similarly, the zone of physical danger could be satisfied if the mother could prove that her physical health, or that of her unborn twins, was threatened when the hospital failed to determine she was pregnant before administering x-rays. On the other hand, the court found the plaintiffs were not within the zone of physical danger when a funeral home allegedly mishandled a corpse or when the plaintiff received a letter from the hospital informing her she may have been exposed to contaminated syringes.

Appellant presented evidence that he suffered genuine and severe emotional distress, but failed to present any evidence demonstrating that he was placed in physical danger as a result of plaintiff's negligence. In other words, the Appellant failed to show that the erroneous HIV test results created a threat of physical harm. The District of Columbia Court of Appeals affirmed the summary judgment in favor of the Clinic and denied recovery because there was no evidence Appellant was placed in a zone of physical danger.

Associate Judge Ruiz, concurring, noted that this case warrants reconsideration by the full court. The Court of Appeals overruled the prior "impact rule" and adopted the "zone of danger" rule intending to expand upon plaintiffs' ability to recover on NIED claims. Doctors have the benefit of extremely advanced medical diagnostic capabilities that can verify objectively and assess emotional distress. To some extent, this alleviates the burden on the courts in assessing the merit of emotional distress claims. Accordingly, Judge Ruiz wrote that there ought to be little concern about the need to safeguard against fraudulent claims and the zone of danger test should not be so strictly construed.