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Zone-of-Danger Rule Won’t Protect Doctor in HIV Misdiagnosis Suit; Are Lawyers Also at Risk?

Posted Jun 30, 2011 11:44 AM CDT
By Debra Cassens Weiss

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A man who mistakenly believed he was HIV positive for five years because of a mistaken diagnosis may sue for negligent infliction of emotional distress, an appeals court has ruled.

The en banc District of Columbia Court of Appeals allowed the suit against the plaintiff’s doctor and health clinic, according to the Legal Profession Blog and The BLT: The Blog of Legal Times.

The opinion could also apply to lawyers, creating an obligation to avoid negligent infliction of emotional distress, according to the Legal Profession Blog.

Terry Hedgepeth filed the suit against the Whitman Walker Clinic for the alleged misdiagnosis after another clinic correctly diagnosed him five years later. In the interim, Hedgepeth said, he suffered severe depression and engaged in risky behavior, including sex with an HIV-positive woman.

The en banc opinion (PDF) said Hedgepath’s claim should not be barred simply because he failed the “zone of physical danger” test. The test, which bars emotional distress damages when plaintiffs are not put at risk of physical injury, imposes unnecessary limits in the context of a doctor-patient relationship, the decision said.

The court said it wasn’t jettisoning the zone-of-physical-danger rule, but it was supplementing it with a rule allowing recovery based on the special relationship between plaintiff and defendant.

“We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being,” the court said, “or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence.”

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