Proving HIV Exposure Lawsuit In the Absence of Needles and Other Evidence - Example Cases
In most "missing-needle" cases, however, courts have not found a sufficient factual basis for concluding that the instrument was probably a source of HIV.
In Brown v. New York City Health & Hosps. Corp., 225 AD2d 36, 44 despite a missing and untested needle, the appellate court found that there was "other evidence from which a jury could potentially conclude that the needle was contaminated" (id., at 48), specifically the fact that the needle in question had been left in the crib of an HIV-positive infant and that blood had been withdrawn from the infant no more than three hours earlier before the needle pierced plaintiff's skin.
In Bishop v. Mount Sinai Med. Ctr. (247 AD2d 329), the First Department ruled regarding an unidentified sharp object in a hospital dumpster, that it was "highly unlikely" that the object had been infectious because the contents of the dumpster had come from the kitchen area, the hospital had stringent procedure for disposing of medical waste, and the plaintiff tested negative for HIV over a year after the incident.
In another case, there was "compelling evidence establishing the absence of any real possibility that plaintiff was exposed to HIV" by a discarded lancet; the evidence in question showed that only 25% of the patients in the hospital were HIV-positive and that none of those patients had been on the plaintiff's floor for several months prior to the accident (Kelly v. Our Lady of Mercy Med. Ctr., 279 AD2d 290, 291).
The likelihood of contamination was found to be "extremely remote" by the Second Department in Schott v. St. Charles Hosp. (250 AD2d 587) where the needle that stuck the plaintiff was smaller than those normally used for blood transfers and it had probably been through the wash, since it was caught in the folds of a recently laundered gown.
In some cases, the mere absence of any evidence to suggest that HIV-infected fluids were involved was sufficient to defeat liability (Hare v. State of New York, 143 Misc 2d 281 absence of evidence that an inmate who bit the claimant had AIDS).