Cases Dealing With Accidental AIDS Transmission In New York
In Brown (225 AD2d 36, 648 N.Y.S.2d 880), a pediatric nurse at a hospital was stuck with a needle left in a crib of an HIV-positive infant.
There, the Court held that the nurse could maintain a cause of action for negligent infliction of emotional distress, since the plaintiff presented evidence that HIV was present in the needle and that there was a scientifically-accepted method of transmission of the virus (id. at 48).
In Lombardo v. New York Univ. Med. Ctr. (243 AD2d 688, 663 N.Y.S.2d 295 [2d Dept 1997]), the plaintiff, an undertaker, claimed that he cut his finger on an exposed piece of plastic tubing negligently left in the body of a man who had AIDS.
In reversing the trial court, the Second Department stated that "[a]side from the plaintiff's unsupported surmise, there is no evidence that any sharp object was left protruding from the body of the deceased, or that whatever cut the plaintiff was contaminated with the blood of the deceased" (id. at 689).
In Kaufman (207 AD2d 595, 615 N.Y.S.2d 508, supra), a postal worker who was pricked by a hypodermic needle protruding from an envelope was unable to recover for negligent infliction of emotional distress, where he tested negative for AIDS on five separate occasions over an extended period of time and where neither the blood specimen nor the individual had tested positive for HIV (id. at 596).
Courts have developed an exception where there are "special circumstances" sufficient to guarantee the genuineness of the claim (see e.g. Fosby, 252 AD2d at 608 [defendant's unexplained refusal to provide plaintiff with any information regarding prior use of needle established sufficient "special circumstances"]; Schulman v. Prudential Ins. Co. of Am., 226 AD2d 164, 640 N.Y.S.2d 112 [1st Dept 1996] [erroneous report of HIV finding following blood analysis constituted "special circumstances"]).