HIV Misdiagnosis: Negligent Infliction of Emotional Distress and the False-Positive

Iowa Law Review

Volumn 81, Issue 4, 1996, Pages 1229-1248

  Luepke, Ellen L ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 0030327716     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (149)

1. See Bramer v. Dotson, 437 S.E.2d 773, 774 n.1 (W. Va. 1993) (indicating that AIDS is the most feared disease in America (quoting AIDS Tops Cancer and Blindness as "Most Feared Disease" in Gallup Survey, 106 Arch. Opthalmos. 1518 (Nov. 1988))).
2. For general information on the AIDS virus and its historical impact on society and the law, see generally AIDS and the Law (2d ed. Wiley 1992); AIDS and the Law (Harlon L. Dalton et al. eds., 1987); AIDS and the Courts (Clark C. Abt & Kathleen M. Hardy eds., 1990).
3. For general information on the AIDS virus and its historical impact on society and the law, see generally AIDS and the Law (2d ed. Wiley 1992); AIDS and the Law (Harlon L. Dalton et al. eds., 1987); AIDS and the Courts (Clark C. Abt & Kathleen M. Hardy eds., 1990).
4. For general information on the AIDS virus and its historical impact on society and the law, see generally AIDS and the Law (2d ed. Wiley 1992); AIDS and the Law (Harlon L. Dalton et al. eds., 1987); AIDS and the Courts (Clark C. Abt & Kathleen M. Hardy eds., 1990).
5. One commentator has called the AIDS crisis a "world-wide pandemic of the greatest proportions." Alexandra M. Levine, Acquired Immunodeficiency Syndrome: The Facts, 65 S. Cal. L. Rev. 423, 423 (1991). Professor Levine notes that recent changes in lifestyles and sexual behaviors have led to the worldwide spread of the disease. Id. at 429. See also Roger N. Braden, AIDS: Dealing With the Plague, 19 N. Ky. L. Rev. 277, 278 (1992) (comparing AIDS to the Black Death, stating that "[i]t may be just as devastating, if not more devastating").
6. One commentator has called the AIDS crisis a "world-wide pandemic of the greatest proportions." Alexandra M. Levine, Acquired Immunodeficiency Syndrome: The Facts, 65 S. Cal. L. Rev. 423, 423 (1991). Professor Levine notes that recent changes in lifestyles and sexual behaviors have led to the worldwide spread of the disease. Id. at 429. See also Roger N. Braden, AIDS: Dealing With the Plague, 19 N. Ky. L. Rev. 277, 278 (1992) (comparing AIDS to the Black Death, stating that "[i]t may be just as devastating, if not more devastating").
7. See U.S. Dep't of Health and Human Services, Surgeon General's Report on Acquired Immune Deficiency Syndrome 10, 12 (1986) (noting the fatality rate of persons with AIDS).
8. HIV is the virus that precedes full-blown AIDS. Joycelyn L. Cole, Comment, Aids-Phobia: Are Emotional Distress Damages for a Fear of AIDS a Legally Compensable Injury?, 19 T. Marshall L. Rev. 333, 335 (1994). "HIV infection is, in fact, a continuum, with full-blown AIDS as the final end-stage of infection." Levine, supra note 3, at 427. "AIDS is diagnosed when an individual is found to have one or more of the following illnesses: (1) opportunistic infection (2) Kaposi's sarcoma (3) high-grade, B-cell lymphoma (4) AIDS-dementia/encephalopathy syndrome (5) wasting syndrome (slim disease)." Id. at 424. For a concise summary of medical facts about AIDS and HIV, see generally Levine, supra note 3.
9. Chizmar v. Mackie, 896 P.2d 196, 203-05 (Alaska 1995).
10. Id. at 203.
11. See infra notes 13-52 and accompanying text.
12. See infra notes 53-95 and accompanying text.
13. See infra notes 96-134 and accompanying text.
14. See infra notes 135-40 and accompanying text.
15. For a full discussion of the impact and injury rules in relation to fear of AIDS as a cause of action, see generally Karen L. Chadwick, Fear of AIDS: The Catalyst for Expanding Judicial Recognition of a Duty to Prevent Emotional Distress Beyond Traditional Bounds, 25 N.M. L. Rev. 143 (1995) (analyzing the historical progression of recovery for negligent infliction of emotional distress and framing the issue in terms of whether defendants owed a duty to plaintiffs); Mary Donovan, Comment, Is the Injury Requirement Obsolete in a Claim for Fear of Future Consequences?, 41 UCLA L. Rev. 1337 (1994) (presenting a thorough review of the history of the impact and injury rules while proposing a separate cause of action for fear of future diseases including AIDS); Vance A. Fink, Comment, Emotional Distress Damages for Fear of Contracting AIDS: Should Plaintiffs Have to Show Exposure to HIV?, 99 Dick. L. Rev. 779 (1995) (explaining the history of negligent infliction of emotional distress and arguing that plaintiffs should have to prove actual exposure before recovering).
16. For a full discussion of the impact and injury rules in relation to fear of AIDS as a cause of action, see generally Karen L. Chadwick, Fear of AIDS: The Catalyst for Expanding Judicial Recognition of a Duty to Prevent Emotional Distress Beyond Traditional Bounds, 25 N.M. L. Rev. 143 (1995) (analyzing the historical progression of recovery for negligent infliction of emotional distress and framing the issue in terms of whether defendants owed a duty to plaintiffs); Mary Donovan, Comment, Is the Injury Requirement Obsolete in a Claim for Fear of Future Consequences?, 41 UCLA L. Rev. 1337 (1994) (presenting a thorough review of the history of the impact and injury rules while proposing a separate cause of action for fear of future diseases including AIDS); Vance A. Fink, Comment, Emotional Distress Damages for Fear of Contracting AIDS: Should Plaintiffs Have to Show Exposure to HIV?, 99 Dick. L. Rev. 779 (1995) (explaining the history of negligent infliction of emotional distress and arguing that plaintiffs should have to prove actual exposure before recovering).
17. For a full discussion of the impact and injury rules in relation to fear of AIDS as a cause of action, see generally Karen L. Chadwick, Fear of AIDS: The Catalyst for Expanding Judicial Recognition of a Duty to Prevent Emotional Distress Beyond Traditional Bounds, 25 N.M. L. Rev. 143 (1995) (analyzing the historical progression of recovery for negligent infliction of emotional distress and framing the issue in terms of whether defendants owed a duty to plaintiffs); Mary Donovan, Comment, Is the Injury Requirement Obsolete in a Claim for Fear of Future Consequences?, 41 UCLA L. Rev. 1337 (1994) (presenting a thorough review of the history of the impact and injury rules while proposing a separate cause of action for fear of future diseases including AIDS); Vance A. Fink, Comment, Emotional Distress Damages for Fear of Contracting AIDS: Should Plaintiffs Have to Show Exposure to HIV?, 99 Dick. L. Rev. 779 (1995) (explaining the history of negligent infliction of emotional distress and arguing that plaintiffs should have to prove actual exposure before recovering).
18. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984).
19. "With a cause of action established by the physical harm, 'parasitic' damages are awarded, and it is considered that there is sufficient assurance that the mental injury is not feigned." Id. at 363. See, e.g., Gonzales v. Metropolitan Dade County Pub. Health Trust, 651 So. 2d 673, 674 (Fla. 1995) (upholding traditional impact rule); Eakin v. Kumiega, 567 N.E.2d 150, 152 (Ind. Ct. App. 1991) (same); Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 992 (Pa. 1987) (same).
20. Keeton et al., supra note 13, § 54, at 363 ("The theory appears to be that the 'impact' affords the desired guarantee that the mental disturbance is genuine."); see also R.J. & P.J. v. Humana of Florida, Inc. 652 So. 2d 360, 362 (Fla. 1995) (stating that the impact rule is the law in Florida (citing Reynolds v. State Farm Mut Auto. Ins. Co. 611 So. 2d 1294, 1296 (Fla. Dist. Ct. App. 1992))); Ayers v. Jackson Township, 461 A.2d 184, 189 (N.J. Super. Ct. Law Div. 1983) (requiring an "immediate and direct physical impact and injury").
21. If the plaintiff successfully proves these elements, she may recover damages for both physical and emotional distress. To demonstrate the required temporal sequence of causation, courts applying the traditional impact rule refused recovery to pregnant women who suffered miscarriages after witnessing a frightening or emotionally distressing situation. Keeton et al., supra note 13, § 54, at 362-63. These courts reasoned that the injury (the miscarriage) was too far removed from the negligent action that produced the emotional distress; thus, the chain of causation was broken and recovery was not appropriate. For an example of the historical reason for denying recovery in miscarriage cases, see Mitchell v. Rochester Ry., 45 N.E. 354, 355 (N.Y. 1896) (refusing to allow recovery for a miscarriage because the plaintiff failed to meet impact rule causation requirements), overruled by Battalla v. State, 176 N.E.2d 729, 730 (N.Y. 1961). See also Keeton et al., supra note 13, § 54, at 362-63 (explaining that courts allowed compensation for mental distress when there was a contemporaneous physical injury); Donovan, supra note 12, at 1350 (distinguishing between immediate and subsequent physical injury).
22. Jurisdictions have different causation requirements for recovery for emotional damages under the traditional impact rule. Gonzales v. Metropolitan Dade County Pub. Health Trust, 651 So. 2d 673, 674 (Fla. 1995). The requirements vary from objective proof of actual physical injury to temporal sequence, physical impact, or proximate cause. Id. States that strictly adhere to the impact rule include Arkansas, Florida, Georgia, Indiana, Kentucky, Nevada, and Oregon. See, e.g., M.B.M. Co. v. Counce, 596 S.W.2d 681, 685 (Ark. 1980); R.J. & P.J. v. Humana of Florida, Inc., 652 So. 2d 360, 363 (Fla. 1995); OB-GYN Assocs. of Albany v. Littleton, 386 S.E.2d 146, 149 (Ga. 1989); Miller v. May, 656 N.E.2d 1198, 1200 (Ind. Ct. App. 1994); Deutsch v. Shein, 597 S.W.2d 141, 145-46 (Ky. 1980); Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993); Hammond v. Central Lane Communications Ctr., 816 P.2d 593, 596-97 (Or. 1991).
23. Restatement (Second) of Torts § 436 cmt. b (1965); Gonzales, 651 So. 2d at 674. Professor Chadwick notes that the impact rule also placed a duty on the defendant to prevent emotional distress he may cause by the physical peril involved in the impact. Chadwick, supra note 12, at 145.
24. R.J. & P.J., 652 So. 2d at 362; Gonzales, 651 So. 2d at 674.
25. Keeton et al., supra note 13, § 54, at 360-61, 364 ("The true value of the impact requirement may lie in the opportunity which is afforded to the defendant to testify that there was in fact no impact . . . [H]e cannot be sure whom he may have frightened.").
26. Chizmar v. Mackie, 896 P.2d 196, 201 (Alaska 1995).
27. The impact rule is underinclusive because it allows emotional distress damages for plaintiffs who have a very slight contemporaneous impact, but denies compensation to plaintiffs who can show physical injury that occurred after the negligent act.
28. Keeton et al., supra note 13, § 54, at 364.
29. The impact rule lost its efficacy when courts began to award recovery for even the slightest impacts. Id. For historical examples of the lengths to which some courts went to allow damages for emotional distress under the impact rule, see Christy Bros. Circus v. Turnage, 144 S.E. 680, 681 (Ga. App. 1928) (granting recovery for emotional distress under the impact rule where defendant's horse "evacuated his bowels" on plaintiff), overruled by OB-GYN Assoc. of Albany v. Littleton, 386 S.E.2d 146, 148 (Ga. 1989); Homans v. Boston Elevated Ry., 62 N.E. 737, 737 (Mass. 1902) (defining impact as a "slight blow"); Porter v. Delaware, Lackawanna & Western R.R., 63 A. 860, 860 (N.J. 1906) (providing that dust in the eye was a sufficient impact); Morton v. Stack, 170 N.E. 869, 869 (Ohio 1930) (stating that plaintiff's inhalation of smoke provided the requisite impact to allow recovery for emotional distress even though the smoke caused no actual injury).
30. Donovan, supra note 12, at 1351-52. See also Champion v. Grey, 478 So. 2d 17, 18-19 (Fla. 1985) (allowing recovery in emotional distress for a subsequent injury from a mother's death in a wrongful death action where the mother died after witnessing the wreckage of her daughter's fatal accident, even though the mother was neither involved in nor witness to the accident itself); Payton v. Abbott Labs., 437 N.E.2d 171, 181 (Mass. 1982) (abrogating the contemporaneous impact rule by stating that plaintiffs must prove their physical harm was either the cause of or caused by emotional distress and is manifested by "objective symptomatology and substantiated by expert medical testimony").
31. Courts recognized that there could be mental distress from "impacts" that narrowly missed the plaintiff. Keeton et al., supra note 13, § 54, at 364.
32. Id. ("The great majority of courts have now repudiated the requirement of 'impact,' regarding as sufficient the requirement that the mental distress be certified by some physical injury, illness or other objective physical manifestation . . . ."); Donovan, supra note 12, at 1352. States that currently follow some form of the injury rule and allow recovery for either a prior or subsequent injury include Arizona, Delaware, Hawaii, Idaho, Illinois, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Mexico, North Dakota, Oklahoma, Rhode Island, South Dakota, Virginia, Washington, and Wisconsin. For representative cases from these jurisdictions, see generally Gau v. Smitty's Super Valu, Inc., 901 P.2d 455, 457 (Ariz. Ct App. 1995); Brozoska v. Olson, 668 A.2d 1355, 1362 (Del. 1995); Calleon v. Miyagi, 876 P.2d 1278, 1288 (Haw. 1994); Neal v. Neal, 873 P.2d 881, 887 (Idaho Ct. App. 1993); Fusaro v. First Family Mortgage Corp., 897 P.2d 123, 131 (Kan. 1995); Belcher v. T. Rowe Price Found., Inc., 621 A.2d 872, 884 (Md. 1993); Saint Charles v. Kender, 646 N.E.2d 411, 414 (Mass. App. Ct 1995); Daley v. LaCroix, 179 N.W.2d 390, 395 (Mich. 1970); K.A.C. v. Benson, 527 N.W.2d 553, 559 (Minn. 1995); Sears, Roebuck & Co. v. Young, 384 So. 2d 69, 73 (Miss. 1980); Thorpe v. State Dep't of Corrections, 575 A.2d 351, 353 (N.H. 1990); Zamora v. Creamland Dairies, Inc., 747 P.2d 923, 931 (N.M. Ct. App. 1987); Muchow v. Lindblad, 435 N.W.2d 918, 922 (N.D. 1989); Slaton v. Vansickle, 87 P.2d 929, 931 (Okla. 1994); Reilly v. United States, 547 A.2d 894, 895 (R.I. 1988); Nelson v. Web Water Dev. Ass'n, 507 N.W.2d 691, 698 (S.D. 1993); Carstensen v. Chrisland, 442 S.E.2d 660, 668 (Va. 1994); Hunsley v. Giard, 553 P.2d 1096, 1096 (Wash. 1976); Bowen v. Lumbermens Mut Cas. Co., 517 N.W.2d 432, 443 (Wis. 1994); see also infra note 40 (listing states that have do not have an injury requirement).
33. The injury must be "some physical injury, illness or other objective physical manifestation." Keeton et al., supra note 13, § 54, at 364.
34. Id.; Donovan, supra note 12, at 1352-53; see also Allen v. Otis Elevator Co., 563 N.E.2d 826, 831 (111. App. Ct. 1990) (stating that the impact rule, rather than bystander liability, applies to people directly involved in the accident; victims must show a "contemporaneous physical injury . . . resulting from emotional distress caused by defendant's negligence"). 30. Keeton et al., supra note 13, § 54, at 364. See Vance v. Vance, 408 A.2d 728, 734 (Md. 1979) (holding that a subsequent injury is enough proof that plaintiff's mental distress is legitimate).
35. Keeton et al., supra note 13, § 54, at 364 ("It would seem that it is possible to have nearly as much assurance that the mental disturbance is genuine when the plaintiff escapes 'impact' by an inch.").
36. Payton v. Abbott Labs., 437 N.W.2d 171, 181 (Mass. 1982).
37. Donovan, supra note 12, at 1353. The injury rule broadens the types and numbers of cases that qualify for compensation for emotional distress. Id. at 1353 n.66.
38. R.J. & P.J. v. Humana of Florida, Inc., 652 So. 2d 360, 363 (Fla. 1995) (stating that a majority of the states have exceptions to the impact rule).
39. Keeton et al., supra note 13, § 54, at 362 (noting that it is rare for mental distress not to produce any physical manifestations but still be sufficiently severe to justify granting recovery).
40. Id. See also Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992) (requiring that conduct go beyond all bounds of decency so as to be considered intolerable in a civilized community in order to be sufficiently outrageous to grant recovery for purely emotional damages); Eastern Airlines v. King, 557 So. 2d 574, 576 (Fla. 1990) (refusing to award damages for a plane crash caused by defendant's failure to maintain and inspect the aircraft and several missing O-rings, because the omission was not sufficiently outrageous); Restatement (Second) of Torts § 46(d) (1965) (recognizing tort liability "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"); Terrance F. Kiely, Modern Tort Liability: Recovery in the 90s, § 2.1, at 67 (1990) (indicating that the recognition of intentional infliction of emotional harm is a reflection of courts' beliefs that "freedom from emotional distress [is] an interest worthy of protection in its own right").
41. The states with the "zone of danger" exception include Colorado, District of Columbia, New Jersey, Pennsylvania, South Carolina, Utah, and Vermont For illustrative examples of the "zone of danger" standard, see, e.g., Towns v. Anderson, 579 P.2d 1163, 1165 (Colo. 1978); Williams v. Baker, 572 A.2d 1062, 1066-67 (D.C. 1990); Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 578 A.2d 1248, 1249 (N.J. Super. Ct. App. Div. 1990); Hunger v. Grand Cent Sanitation, 670 A.2d 173, 178 (Pa. Super. Ct. 1996) (requiring either an injury to plaintiffs loved one or the plaintiff while in the zone of danger of the defendant's negligent action); Kinard v. Augusta Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985) (requiring the plaintiff to be in "close proximity" to the defendant's action); Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 240 (Utah 1992); Leo v. Hillman, 665 A.2d 572, 577 (Vt. 1995).
42. See Keeton et al., supra note 13, § 55, at 370 (explaining that recovery is available in wrongful birth for the birth of an unwanted child); id. § 54, at 362 (stating that damages are available without physical injury for negligent transmission of telegraph or telephone messages); see also Kush v. Lloyd, 616 So. 2d 415, 422-23 (Fla. 1992) (supplanting the impact doctrine and allowing recovery to parents for emotional distress in wrongful birth action where a genetically defective child was born as the result of defendant's negligent failure to diagnose the child's abnormality prior to birth, without requiring the parents to show any physical injury); Western Union Tel. Co. v. Redding, 129 So. 743, 745 (Fla. 1930) (granting recovery for a negligently transmitted message containing the laboratory results of a diphtheria test); Carey v. Lima, Salmon & Tully Mortuary, 335 P.2d 181, 182 (Cal. 1959) (allowing compensation for emotional damages where defendant's failure to embalm led to a dead body arriving in a "decayed condition, malodorous and dripping fluid"); Chelini v. Nieri, 196 P.2d 915, 916 (Cal. 1948) (granting recovery where defendant's negligent failure to embalm led plaintiffs mother's body to become a "rotted, decomposed and insect and worm-infested mass").
43. Keeton et al., supra note 13, § 54, at 362. Keeton et al. recognize the possibility that other instances may arise that would merit an exception to the impact or injury rule, including the negligent misinformation to a plaintiff that her mother had died. Id. See also Johnson v. State, 334 N.E.2d 590, 593 (N.Y. 1975) (allowing recovery for emotional harm where there is both a guarantee of genuineness and substantial harm).
44. These states include the following: Alabama, Alaska, California, Connecticut, Illinois, Iowa, Louisiana, Maine, Missouri, Montana, Nebraska, New York, North Carolina, Ohio, Tennessee, Texas, West Virginia, and Wyoming. See, e.g., Walker Builders, Inc. v. Lykens, 628 So. 2d 923, 924 (Ala. Civ. App. 1993); Chizmar v. Mackie, 896 P.2d 196, 201-204 (Alaska 1995); Molien v. Kaiser Found. Hosp., 616 P.2d 813, 820-21 (Cal. 1980), limited by Burgess v. Superior Ct., 831 P.2d 1197, 1201 (Cal. 1992) (limiting Molien's award of emotional distress damages without a physical injury to cases in which the defendant owed a preexisting duty to the plaintiff, and requiring the plaintiff to be a "direct victim" of the defendant's negligent action); Montinieri v. Southern New England Tel. Co., 398 A.2d 1180, 1184 (Conn. 1978); Corgan v. Muehling, 574 N.E.2d 602, 606-609 (Ill. 1991) (holding physical injury was not necessary for a directed verdict where plaintiff brought action for negligent infliction of emotional distress against a psychologist with whom she had sexual relations during treatment); Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990) (imposing liability for negligent infliction of emotional distress where defendant owed a duty to plaintiff); Morris v. Maryland Cas. Co., 657 So. 2d 198, 200-01 (La. Ct. App. 1995); Gammon v. Osteopathic Hosp. of Maine, 534 A.2d 1282, 1284 (Me. 1987); Ford v. Aldi, Inc., 832 S.W.2d 1, 2 (Mo. Ct. App. 1992) (citing Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983)); Lueck v. United Parcel Serv., 851 P.2d 1041, 1047 (Mont. 1993); Sell v. Mary Lanning Mem'l Hosp. Ass'n, 498 N.W.2d 522, 525 (Neb. 1993); Thomas v. Supermarkets Gen. Corp., 586 N.Y.S.2d 454, 457 (N.Y. Sup. Ct. 1992) (noting that the instances in which damages will be awarded without physical injury are limited to situations in which the defendant owed a duty to the plaintiff); Johnson v. Ruark Obstetrics & Gynecology Assocs., 395 S.E.2d 85, 92 (N.C. 1990) (allowing a freestanding cause of action where the defendant owes a contractual duty to plaintiff); Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983); but see discussion of Heiner v. Moretuzzo, infra notes 115-34, and accompanying text (explaining that the Ohio court carved an exception for HIV misdiagnosis in refusing to allow for emotional distress damages where there was no injury by using an alternative analysis). See also Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996) (expressly overruling prior Tennessee precedent and allowing recovery without requiring physical consequences); Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993) (holding plaintiff can sustain cause of action for emotional distress without physical injury only when the defendant breached a preexisting legal duty); Ricottilli v. Summersville Mem'l Hosp., 425 S.E.2d 629, 634-35 (W. Va. 1992) (requiring plaintiff to prove that her emotional distress is not spurious); Gates v. Richardson, 719 P.2d 193, 200-01 (Wyo. 1986) (creating a tort of negligent infliction of emotional distress in bystander cases with specific limitations).
45. Keeton et al., supra note 13, § 54, at 364-65.
46. Id. at 365 n.60. The objective standard excludes liability for hypersensitive plaintiffs. Id. See Molien v. Kaiser Found. Hosp., 616 P.2d 813, 819-29 (Cal. 1980) (imposing an objective standard for mental distress cases); Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970) ("Serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case . . . .").
47. Keeton et al., supra note 13, § 54, at 364. See generally Richard S. Miller, The Scope of Liability for Negligent Infliction of Emotional Distress: Making "The Punishment Fit the Crime," 1 U. Haw. L. Rev. 1 (1979) (discussing the policy implications of the Rodrigues decision on the future of tort liability and arguing that emotional distress damages should be limited to plaintiff's actual economic losses).
48. Keeton et al., supra note 13, § 54, at 364. See generally Richard S. Miller, The Scope of Liability for Negligent Infliction of Emotional Distress: Making "The Punishment Fit the Crime," 1 U. Haw. L. Rev. 1 (1979) (discussing the policy implications of the Rodrigues decision on the future of tort liability and arguing that emotional distress damages should be limited to plaintiff's actual economic losses).
49. Rodrigues, 472 P.2d at 520 (requiring only a degree of genuineness, where courts and juries are to look to "the quality and genuineness of proof and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out dishonest claims" in order to recover for emotional distress) (citing Ferrara v. Galluchio, 152 N.E.2d 249 (N.Y. 1958)); see also Molien v. Kaiser Found. Hosp., 616 P.2d 813, 818-19 (Cal. 1980) (establishing a cause of action for negligent infliction of "serious emotional distress" for a husband whose wife was misdiagnosed with syphilis).
50. Rodrigues, 472 P.2d at 521.
51. Id. at 520-21.
52. 616 P.2d 813 (Cal. 1980).
53. Id. at 821.
54. Id.
55. Id. The court also added that in some instances plaintiffs may prove causation by presenting objective proof through expert medical testimony. Id.
56. Some courts have held that the doctor-patient relationship contains such a duty. See Chizmar v. Mackie, 896 P.2d 196, 205 (Alaska 1995) (finding a duty between a doctor and patient); Johnson v. State, 334 N.E.2d 590, 593 (N.Y. 1975) (finding that a hospital owed a duty to the relatives of a patient to avoid negligent infliction of emotional harm).
57. For discourse on a cause of action based on fear of AIDS separate from injury or impact requirements, see generally; Robert C. Bollinger, On the Road to Recovery for Emotional Harm: Is the Fear of AIDS a Legally Compensable Injury?, 16 J. Legal Med. 417 (1995); Chadwick, supra note 12; James C. Maroulis, Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS?, 62 Fordham L. Rev. 225 (1993); Harris J. Zakarin, Scared to Death: A Cause of Action for AIDS Phobia, 10 Touro L. Rev. 263 (1993); Cole, supra note 5; Donovan, supra note 12; Fink, supra note 12; Mark McAnulty, Casenote, Shattering the "Reasonable Window of Anxiety" - Recovering Emotional Distress Damages for the Fear of Contracting AIDS, 19 S. Ill. U. L.J. 661 (1995).
58. For discourse on a cause of action based on fear of AIDS separate from injury or impact requirements, see generally; Robert C. Bollinger, On the Road to Recovery for Emotional Harm: Is the Fear of AIDS a Legally Compensable Injury?, 16 J. Legal Med. 417 (1995); Chadwick, supra note 12; James C. Maroulis, Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS?, 62 Fordham L. Rev. 225 (1993); Harris J. Zakarin, Scared to Death: A Cause of Action for AIDS Phobia, 10 Touro L. Rev. 263 (1993); Cole, supra note 5; Donovan, supra note 12; Fink, supra note 12; Mark McAnulty, Casenote, Shattering the "Reasonable Window of Anxiety" - Recovering Emotional Distress Damages for the Fear of Contracting AIDS, 19 S. Ill. U. L.J. 661 (1995).
59. For discourse on a cause of action based on fear of AIDS separate from injury or impact requirements, see generally; Robert C. Bollinger, On the Road to Recovery for Emotional Harm: Is the Fear of AIDS a Legally Compensable Injury?, 16 J. Legal Med. 417 (1995); Chadwick, supra note 12; James C. Maroulis, Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS?, 62 Fordham L. Rev. 225 (1993); Harris J. Zakarin, Scared to Death: A Cause of Action for AIDS Phobia, 10 Touro L. Rev. 263 (1993); Cole, supra note 5; Donovan, supra note 12; Fink, supra note 12; Mark McAnulty, Casenote, Shattering the "Reasonable Window of Anxiety" - Recovering Emotional Distress Damages for the Fear of Contracting AIDS, 19 S. Ill. U. L.J. 661 (1995).
60. For discourse on a cause of action based on fear of AIDS separate from injury or impact requirements, see generally; Robert C. Bollinger, On the Road to Recovery for Emotional Harm: Is the Fear of AIDS a Legally Compensable Injury?, 16 J. Legal Med. 417 (1995); Chadwick, supra note 12; James C. Maroulis, Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS?, 62 Fordham L. Rev. 225 (1993); Harris J. Zakarin, Scared to Death: A Cause of Action for AIDS Phobia, 10 Touro L. Rev. 263 (1993); Cole, supra note 5; Donovan, supra note 12; Fink, supra note 12; Mark McAnulty, Casenote, Shattering the "Reasonable Window of Anxiety" - Recovering Emotional Distress Damages for the Fear of Contracting AIDS, 19 S. Ill. U. L.J. 661 (1995).
61. See Max R. Proffitt & Belinda Yen-Lieberman, Laboratory Diagnosis of Human Immunodeficiency Virus Infection, Infectious Disease Clinics of North America 204 (June 1993) ("An enzyme-based immunoassay (EIA or ELISA) designed to detect antibodies to the virus usually is the first test done to 'screen' an individual for HIV infection.").
62. The Centers for Disease Control and the American Medical Association have recommended voluntary testing and counseling as a part of medical protocols for "all persons seeking treatment for sexually transmitted diseases," intravenous drug users, "all persons who consider themselves at risk for HIV infection," and pregnant women "with identifiable risks for HIV infection . . . ." Legal Action Center, AIDS: A Guide to Legal and Policy Issues 73 (1988). A 1991 Johns Hopkins Hospital guideline proposed more widespread voluntary testing for additional groups, including prostitutes, patients with certain conditions commonly associated with AIDS, patients exposed to blood or other bodily fluids, and people considering marriage. Abe B. Macher, HIV Disease/AIDS: Medical Background, in Wiley, AIDS and the Law, supra note 2, at 16. HIV screening has been mandatory for civilians wishing to enter the military since 1985. Donald S. Burke, et al., Measurement of the False Positive Rate in a Screening Program for Human Immunodeficiency Virus Infections, New Eng. J. Med. 961 (1988). Mandatory premarital screening has been proposed in many states. Michael Closen et al., Mandatory Premarital HIV Testing: Political Exploitation of the AIDS Epidemic, 69 Tul. L. Rev. 71, 72-76 (1994).
63. The Centers for Disease Control and the American Medical Association have recommended voluntary testing and counseling as a part of medical protocols for "all persons seeking treatment for sexually transmitted diseases," intravenous drug users, "all persons who consider themselves at risk for HIV infection," and pregnant women "with identifiable risks for HIV infection . . . ." Legal Action Center, AIDS: A Guide to Legal and Policy Issues 73 (1988). A 1991 Johns Hopkins Hospital guideline proposed more widespread voluntary testing for additional groups, including prostitutes, patients with certain conditions commonly associated with AIDS, patients exposed to blood or other bodily fluids, and people considering marriage. Abe B. Macher, HIV Disease/AIDS: Medical Background, in Wiley, AIDS and the Law, supra note 2, at 16. HIV screening has been mandatory for civilians wishing to enter the military since 1985. Donald S. Burke, et al., Measurement of the False Positive Rate in a Screening Program for Human Immunodeficiency Virus Infections, New Eng. J. Med. 961 (1988). Mandatory premarital screening has been proposed in many states. Michael Closen et al., Mandatory Premarital HIV Testing: Political Exploitation of the AIDS Epidemic, 69 Tul. L. Rev. 71, 72-76 (1994).
64. The Centers for Disease Control and the American Medical Association have recommended voluntary testing and counseling as a part of medical protocols for "all persons seeking treatment for sexually transmitted diseases," intravenous drug users, "all persons who consider themselves at risk for HIV infection," and pregnant women "with identifiable risks for HIV infection . . . ." Legal Action Center, AIDS: A Guide to Legal and Policy Issues 73 (1988). A 1991 Johns Hopkins Hospital guideline proposed more widespread voluntary testing for additional groups, including prostitutes, patients with certain conditions commonly associated with AIDS, patients exposed to blood or other bodily fluids, and people considering marriage. Abe B. Macher, HIV Disease/AIDS: Medical Background, in Wiley, AIDS and the Law, supra note 2, at 16. HIV screening has been mandatory for civilians wishing to enter the military since 1985. Donald S. Burke, et al., Measurement of the False Positive Rate in a Screening Program for Human Immunodeficiency Virus Infections, New Eng. J. Med. 961 (1988). Mandatory premarital screening has been proposed in many states. Michael Closen et al., Mandatory Premarital HIV Testing: Political Exploitation of the AIDS Epidemic, 69 Tul. L. Rev. 71, 72-76 (1994).
65. The Centers for Disease Control and the American Medical Association have recommended voluntary testing and counseling as a part of medical protocols for "all persons seeking treatment for sexually transmitted diseases," intravenous drug users, "all persons who consider themselves at risk for HIV infection," and pregnant women "with identifiable risks for HIV infection . . . ." Legal Action Center, AIDS: A Guide to Legal and Policy Issues 73 (1988). A 1991 Johns Hopkins Hospital guideline proposed more widespread voluntary testing for additional groups, including prostitutes, patients with certain conditions commonly associated with AIDS, patients exposed to blood or other bodily fluids, and people considering marriage. Abe B. Macher, HIV Disease/AIDS: Medical Background, in Wiley, AIDS and the Law, supra note 2, at 16. HIV screening has been mandatory for civilians wishing to enter the military since 1985. Donald S. Burke, et al., Measurement of the False Positive Rate in a Screening Program for Human Immunodeficiency Virus Infections, New Eng. J. Med. 961 (1988). Mandatory premarital screening has been proposed in many states. Michael Closen et al., Mandatory Premarital HIV Testing: Political Exploitation of the AIDS Epidemic, 69 Tul. L. Rev. 71, 72-76 (1994).
66. For general information about the sensitivity and specificity of various HIV screening tests, see Mark A. Rothstein, Screening Workers for AIDS, in Dalton, AIDS and the Law, supra note 2, at 131-34.
67. Errors may occur in the timing of the test, technical errors including mishandling blood samples, and interfering biological conditions. June Osborn, HIV Antibody Testing Uses and Limitations, in Abt & Hardy, AIDS and the Courts, supra note 2, at 45.
68. Osborn, supra note 56, at 46.
69. Rothstein, supra note 55, at 130. The ELISA test costs two to three dollars per test Id.
70. Osborn, supra note 56, at 46.
71. Id. The Western Blot test costs about one hundred dollars, and its interpretation is more difficult and time-intensive than the ELISA test. Rothstein, supra note 55, at 130. For detailed information about the Western Blot test method, see Rothstein, supra note 55, at 131-35; J. Sanford Schwartz et al., Human Immunodeficiency Virus Test Evaluation, Performance, and Use, 259 JAMA 2574 (1988).
72. Closen et al., AIDS Cases and Materials 149 (1989).
73. Opportunity for errors in the administration of the test include: heating or improper storage of serum, mixing of specimens or reagents, or improper reagents. Id. In addition, biological factors unrelated to the presence of HIV antibodies can yield positive results. Id. Biological errors include the patient's infection with other viral infections, autoimmune disease, or intravenous drug use. Id.
74. Osborn, supra note 56, at 50.
75. Id. at 46.
76. Tom Neidlich, Suits by Patients Surge in Misdiagnosed AIDS Cases, Nat'l L.J., Aug. 7, 1995, at A12 (discussing recent cases involving the litigation of HIV false-positive misdiagnosis and stating that "dozens of such suits are active around the country").
77. See Chizmar v. Mackie, 896 P.2d 196, 205 (Alaska 1995) (abandoning injury rule and allowing recovery); R.J. & P.J. v. Humana of Florida Inc., 652 So. 2d 360, 363 (Fla. 1995) (holding that injury rule precludes recovery for misdiagnosis); Heiner v. Moretuzzo, 652 N.E.2d 664, 670 (Ohio 1995) (denying recovery in misdiagnosis case because plaintiff suffered no physical consequences and was never in any physical peril).
78. 896 P.2d 196 (Alaska 1995).
79. Id. at 203.
80. Id. at 199.
81. Id. Another reason for administering the HIV test was that Dr. Mackie believed Ms. Chizmar was from an island near Haiti. In reality, she was from Trinidad. Id. at 198. In addition, the doctor did not inform Ms. Chizmar that he was ordering the test. Id. at 199. See supra notes 55-64 and accompanying text (explaining the methodology and accuracy of ELISA. test procedures).
82. Chizmar, 896 P.2d at 199. Dr. Mackie mistook a "repeatedly reactive" test result for a positive result, thus misreading the test results. The "repeatedly reactive" outcome should have indicated an inconclusive rather than an HIV-positive diagnosis. Id.
83. Id. at 199. Mr. Chizmar left the home and filed for divorce two months after Ms. Chizmar received a final confirmation that she was HIV-negative. Id.
84. Id.
85. Id. at 199-200.
86. Id.
87. Chizmar, 896 P.2d at 201.
88. Id. at 203.
89. Id.
90. Other examples of personal fiduciary relationships include contracts "to conduct a funeral, to sell a sealed casket, to conduct a cesarean birth, to surgically rebuild a nose, to provide promised maternity coverage, to provide medical services, and to keep a daughter informed of her mother's health." Id. (quoting Hancock v. Northcutt, 808 P.2d 251, 258 (Alaska 1991)).
91. Id. The court indicated that the relationship must be "highly personal and laden with emotion as contracts where emotional damages have been allowed to stand on their own." Id.
92. Chizmar, 896 P.2d at 206.
93. Id.
94. Id. The court stated only that it would not "foreclose the possibility that a plaintiff may be able to establish, through appropriate expert testimony, long-term emotional trauma proximately related to the defendant's negligent conduct." Id.
95. The Chizmar court did, however, draw the line of liability in that it upheld the lower court's directed verdicts for the defendant on the plaintiffs allegations of invasion of privacy, intentional infliction of emotional distress, claims for punitive damages, and economic loss resulting from the divorce. Id. at 206-211.
96. Id. at 205.
97. Chizmar, 896 P.2d at 205 (positing that "[a] jury could reasonably conclude that the emotional distress resulting from a misdiagnosis of AIDS is foreseeable and that such distress is serious or severe"). But see Faya v. Almaraz, 620 A.2d 327, 338 (Md. 1993) (requiring objective proof of emotional distress); Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. 1983) (same).
98. Molien v. Kaiser Found. Hosp., 616 P.2d 813, 821 (Cal. 1980) (en bane) (stating that "jurors are best situated to determine whether and to what extent the defendant's conduct caused emotional distress, by referring to their own experience."); Chizmar, 896 P.2d at 205; see also Corgan v. Muehling, 574 N.E.2d 602, 609 (Ill. 1991) (affirming an Illinois court's decision to allow a jury to measure damages for emotional stress even though a jury lacks precision in the measurement of emotional distress).
99. Chizmar, 896 P.2d at 204 (quoting Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970)). The court indicated that "mere temporary fright, disappointment or regret will not suffice, under this standard." Id. at 204-05 (citing Johnson v. Ruark Obstetrics & Gynecology Assocs., 395 S.E.2d 85, 97 (N.C. 1990)).
100. Id. at 204 (citing Lejeune v. Rayne Branch Hosp., 556 So. 2d 559, 570 (La. 1990)).
101. Id. at 205 (noting that the Molien court allowed for universally accepted gravity of a syphilis diagnosis as an adequate standard of proof).
102. Id. at 206 (presuming that a plaintiffs fear of AIDS is not reasonable after he learns that he is not HIV-positive, but refusing to definitively draw the line of liability at that point).
103. See Kerins v. Hartley, 21 Cal. Rptr. 2d 621, 632 (Cal. Ct. App. 1993) (limiting the time period for recovery in fear of AIDS case to a time of "reasonable anxiety"). Limiting liability in this way is desirable because "there is substantial medical evidence indicating that it is extremely unlikely that a person who tests HIV-negative more than six months after a potential exposure [sic] will contract AIDS." McAnulty, supra note 52, at 677-78 (citing Burk v. Sage Prods. Inc., 747 F. Supp 285, 288 (E.D. Pa. 1990)).
104. Chizmar, 896 P.2d at 206 (citing Kerins, 21 Cal. Rptr. 2d at 632).
105. Id. at 206 ("[W]e do not foreclose the possibility that a plaintiff may be able to establish, through appropriate expert testimony, long-term emotional trauma proximately related to the defendant's negligent conduct").
106. R.J. & P.J. v. Humana of Florida, Inc. 652 So. 2d 360 (Fla. 1995); Heiner v. Moretuzzo, 652 N.E.2d 662 (Ohio 1995).
107. 652 So. 2d 360 (Fla. 1995).
108. Id. at 363.
109. Id. at 362.
110. Id.
111. Id.
112. R.J. & P.J., 652 So. 2d at 361.
113. Id. at 362.
114. Id. at 364.
115. See supra notes 12-33 and accompanying text (explaining that the traditional rationale of the impact and injury rules is to ensure genuine claims and to compensate only serious emotional distress).
116. R.J. & P.J., 652 So. 2d at 363-64. The court noted that in the case of intentional torts when the defendant's actions are sufficiently outrageous, plaintiffs may recover under an intentional infliction of emotional distress theory. See Eastern Airlines, Inc. v. King, 557 So. 2d 574, 578 (Fla. 1990) (allowing recovery for intentional infliction of emotional distress without requiring a physical injury).
117. R.J. & P.J., 652 So. 2d at 364.
118. Id.
119. Id. at 362-63.
120. Justice Kogan noted in his concurring opinion that the court mistakenly termed its rule the "impact rule," but did not require the temporal element associated with the traditional impact rule. Id. at 364-65 (Kogan, J., concurring). For a discussion of the distinction between the impact and the injury rules, see supra notes 32-33 and accompanying text. Justice Kogan argued that the court should properly term its rule the "actual injury rule." R.J. & P.J., 652 So. 2d at 365-66 (Kogan, J., concurring).
121. R.J. & P.J., 652 So. 2d at 364.
122. Id.
123. The court specifically mentioned Aridothymidine, commonly known as AZT, a drug used for treatment in HIV patients. Id. AZT is considered to be an Invasive treatment because it has been associated with certain side effects, including anemia. Levine, supra note 3, at 434.
124. R.J. & P.J., 652 So. 2d at 364. The court allowed the plaintiff to amend his complaint, giving him another chance to meet the impact requirement Id. This situation is one in which the distinction between the "impact" and "injury" rule is important Justice Kogan argued in the concurring opinion that the majority adhered to the "injury" rule in practice, because it did not expressly require the temporal sequence inherent in the "impact" rule. Id. at 364-65 (Kogan, J. concurring). Justice Kogan argued in essence that the majority opinion may have abrogated the "impact"rule and joined the majority of states that adhere to the "injury" rule by its failure to recognize the temporal element. Id. A close reading of both the concurring and majority opinions indicates that this view is correct. However, because the proposed injury - exposure to toxic medication or invasive medical procedures - would be enough to satisfy either rule, neither the majority nor the concurrence directly confronted the issue of whether subsequent physical injury resulting from emotional distress would qualify for compensation. See id. at 365, 365 n.3 (Kogan, J., concurring) (stating that the definition of "injury" need not be addressed in R.J. & P.J. because the prescribed injuries dearly would be actual injuries).
125. Heiner v. Moretuzzo, 652 N.E.2d 664, 668 (Ohio 1995). Ohio operates under a bifurcated standard in allowing recovery for emotional distress, depending on whether the plaintiff was the direct victim of the defendant's negligence or a bystander to the defendant's act. A direct victim alleging serious emotional distress need not show contemporaneous physical injury. Schultz v. Barberton Glass Co., 447 N.E.2d 109 (Ohio 1983). If the direct victim plaintiff claiming serious and debilitating emotional distress can prove that her claim is genuine, through expert evidence or by other means, she need not show physical injury. Knief v. Minnich, 658 N.E.2d 1072, 1075 (Ohio Ct. App. 1995). A plaintiff claiming emotional distress who was not the direct victim but rather a bystander to the defendant's negligent act may recover without a physical injury if the plaintiffs emotional distress is both serious and reasonably foreseeable, and when the plaintiff reasonably appreciated and was cognizant of the danger that took place. Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983).
126. Heiner, 652 N.E.2d at 665.
127. Id.
128. Id. Apparently, the original blood sample was somehow contaminated with HIV-positive blood. The opinion does not indicate how the blood sample became contaminated.
129. Id. at 665.
130. Id.
131. Heiner, 652 N.E.2d at 665.
132. Id. at 666 (referring to Criswell v. Brentwood Hosp., 551 N.E.2d 1315 (Ohio 1989)).
133. Id. at 668.
134. Id.
135. Id. at 669 (citing Criswell, 551 N.E.2d at 1317-18). Ms. Heiner cited Binns v. Fredenall, 513 N.E.2d 278 (Ohio 1987), in which the plaintiff recovered damages for emotional distress for injuries resulting from a car accident in which the plaintiff was injured. In addition to compensation for her injuries, the plaintiff recovered damages for emotional distress resulting from experiencing her boyfriend's severely injured head resting on her shoulder. Heiner, 652 N.E.2d at 667. The Heiner court distinguished Binns, characterizing the Binns situation as an exception to the injury rule in which the plaintiff was a party to the injury of a loved one and received injuries herself resulting from the defendant's negligent action. Id. at 668.
136. Heiner, 652 N.E.2d at 670. For other cases denying recovery for fear of AIDS, see Lubowitz v. Albert Einstein Med. Ctr., 623 A.2d 3, 4-5 (Pa. Super. Ct. 1993) (denying recovery to a woman who feared she had been exposed to HIV through an in vitro fertilization procedure and imposing the injury requirement in denying recovery for physical symptoms of nausea, vomiting, and diarrhea because they were not caused by the AIDS virus). Cf. Bramer v. Dotson, 437 S.E.2d 773, 774 (W. Va. 1993) (categorizing emotional distress as a "personal injury" even without a physical injury); Ricottilli v. Summersville Mem'l Hosp., 425 S.E.2d 629, 635 (W. Va. 1992) (applying bystander exception where emotional damage was not spurious).
137. 896 P.2d 196 (Alaska 1995).
138. Heiner, 652 N.E.2d at 670. The court stated "[We are not] prepared to create a 'subspecies' of the tort of negligent infliction of emotional distress that applies only in the context of the patient-physician relationship." Id.
139. Id.
140. Id.
141. But c.f. Kennedy v. University of Cincinnati Hosp., 1995 WL 141348 (Ohio App. 10 Dist) (granting the plaintiff $100,000 in damages where the facts indicated that plaintiff underwent a hysterectomy as the proximate result of a negligent HIV misdiagnosis).
142. The case law leading up to the Heiner decision allowed recovery for negligent infliction of serious emotional distress without a contemporaneous or subsequent physical injury. The Ohio rule was that "[a] cause of action may be stated for the negligent infliction of serious emotional distress without the manifestation of a resulting physical injury. Proof of a resulting physical injury is admissible as evidence of the degree of emotional distress suffered." Heiner, 652 N.E.2d at 667 (quoting Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983)). See supra notes 36-52 and accompanying text (explaining the abrogation of the injury rule in certain states).
143. See Heiner, 652 N.E.2d at 671 (Resnick, J. dissenting) (disagreeing with what she characterized as a "blanket prohibition of recovery in false-positive cases").
144. See id. at 670 (holding that the plaintiffs injuries are simply not compensable because they are based on an irrational fear that never came to pass).
145. Neidlich, supra note 65, at A12.
146. For general information about the incidence and frequency of the ELISA test for HIV antibodies, see Benentson et al., Reporting the Results of Human Immunodeficiency Virus Testing, 262 JAMA 3435 (1990). Since many people increasingly undergo HIV testing, it follows that medical professionals' potential liability grows as well 136. See supra notes 36-52 and accompanying text (explaining how Alaska has abandoned the injury rule).
147. See supra notes 91-94 and accompanying text (arguing that Chizmar is an imprudent expansion of liability).
148. See Chizmar v. Mackie, 896 P.2d 196, 206 (Alaska 1995) (recognizing the possibility that a plaintiffs emotional distress could extend beyond the relatively short time period when she thought she was HIV-positive).
149. AIDS testing through the ELISA test for HIV antibodies is increasingly common. Closen, supra note 61, at 460.