Hiv Positive Diagnosis Mistakes Cases In Pennsylvania
In Lubowitz v. Albert Einstein Medical Center, 424 Pa. Super. 468, 623 A.2d 3 (Pa.Super. 1993), Superior Court held that there could be no recovery for "fear of AIDS" where the Plaintiff had not developed the illness, and her symptoms were not caused by the AIDS virus itself.
The Lubowitz appellant had undergone in vitro fertilization, a procedure which involved the implantation of a fertilized egg and donated "placental serum".
The appellant was later informed that the serum had tested positive for AIDS, although subsequent testing revealed that neither the appellant nor the placental serum donor were HIV positive, and appellant did not, in fact, contract AIDS.
Although the Lubowitz appellant sued for negligent infliction of emotional distress, alleging that she suffered physical manifestations of emotional distress, a panel of this Court found that the actual injury at issue was the "fear of AIDS." 623 A.2d at 5. Such an injury, the Court concluded, is not compensable under existing case law, and, therefore, the appellant had no cognizable claim. Id.
As the Court succinctly stated, the appellant "cannot recover, in her asymptomatic state, monetary damages for a risk or fear of developing AIDS in the future."
See also Millikan v. Holy Spirit Hospital, 27 Pa. D. & C.4th 481 (1996), where the court held that a Plaintiff who was falsely diagnosed as being HIV positive could not recover for emotional distress and the accompanying physical injury as a result of the mis-diagnosis.
In Millikan, the appellant was told she had AIDS after her test results were switched with results actually belonging to another person. the appellant alleged negligent infliction of emotional distress as a result of the mistaken diagnosis, averring that she suffered both physical and emotional injuries from it, but the Court of Common Pleas of Cumberland County, relying on Lubowitz, found that the appellant's symptoms did not arise out of exposure to the disease itself, and, therefore, under Pennsylvania law, were not compensable. Millikan, supra at 485. While we are not bound by the findings of the Court of Common Pleas, we are persuaded by its reasoning in this case.