March 8 – The D.C. Court of Appeals has granted an en banc hearing in the case of a man who is seeking the right to sue for emotional damages after he was misdiagnosed with HIV.Andy Jones The National Law Journal
The case could give the court a chance to rethink a long-standing precedent in medical malpractice cases, which holds that courts can only grant damages for emotional distress if the plaintiff had been put in a “zone of physical danger.”
Terry Hedgepeth spent five years believing he had HIV after he was falsely diagnosed at the Whitman Walker Clinic in Washington. He learned he never had the virus after a new test at a different clinic in 2005.
Between the two tests, he said he suffered severe depression which led to problems in his relationship with his daughter, the loss of his job, heavy use of illegal drugs and suicidal thoughts. He was twice committed to psychiatric wards.
Hedgepeth, represented by solo practitioner Jonathan Dailey of Washington, sued the Whitman Walker Clinic, but both the D.C. Superior Court and Court of Appeals dismissed his case. In a 12-page per curiam decision on Oct. 1, the Court of Appeals ruled that Hedgepeth’s emotional distress did not reach the standard set by the court in the 1990 case Williams v. Baker, which said damages were appropriate “if the plaintiff was in the zone of physical danger and was caused by defendant’s negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress.”
The court noted that Walker had never taken any HIV medication or otherwise been treated for the virus.
“Although appellant presented evidence that supports that he suffered genuine and severe emotional distress during the years he believed he was infected with HIV, he was never within a ‘zone of physical danger,'” the court concluded.
However, Judge Vanessa Ruiz, in a concurring opinion, described her support for a separate en banc hearing to examine the precedent. She suggested the standard might need to be expanded, highlighting advancements in medicine that can assess the extent of a person’s emotional distress.
She also wrote that fears of “opening the gates to a flood of litigation,” should not be a factor in how emotional distress cases are ruled.
This article first appeared on The BLT: The Blog of Legal Times.