HIV Issues Push the Boundaries of Tort Law - Idaho Supreme Court

A decision announced by the Idaho Supreme Court on March 5, 2009, Cramer v. Slater, 2009 Westlaw 540706, required the court to explore interesting issues of causation and liability in the context of a failure by a health care provider to accurately communicate the result of HIV testing.  There have been quite a few cases where individuals who were told that they were HIV+ when in fact they were not have sought damages for emotional distress, and courts are divided about whether to award such damages where the emotional distress does not accompany a physical injury.  This case presents a curious twist on the issue, raising important torts policy questions.

In this case, one of the defendants, Idaho Center for Reproductive Medicine, is being sued in connection with the apparent suicide of an HIV+ man who was told by ICRM that he was not infected with HIV, only to discover more than a year later that he was infected.

The Cramers, a married couple, went to ICRM seeking in vitro fertilization, as Mrs. Cramer had proved unable to conceive through normal sexual intercourse.  Both of them submitted to HIV testing as part of that process, and were told that they were negative.  The in vitro failed, however.  A year later, Mr. Cramer applied for a life insurance policy, for which HIV testing was required.  The insurance company told him to contact his doctor for the results, and he was informed by his doctor that he had tested positive and should be tested again to determine whether it was a false positive.  He was informed "that negative test results are returned within a couple of days, but that positive rest results would take longer to report."  Three days after having his blood drawn, Mr. Cramer called the doctor's office and was told they did not have a test result yet.   Mr. Cramer failed to return home or to work.  Two days later, his body was found at the base of a cliff, and the coroner's office classified his death as a suicide. 

Mrs. Cramer sued various individuals and institutions, but the most interesting aspect of the case from the point of view of tort law is her suit against ICRM.   It turns out that Mr. Cramer had been inaccurately told that he was negative for HIV when he and his wife went for the in vitro services.  Mrs. Cramer now seeks to hold ICRM at least partially liable for the wrongful death of her husband, with resulting financial loss and emotional distress, on a theory that had he been correctly diagnosed and informed at that time, he would have been directed to counseling and treatment.   Another part of her theory of liability is that Cramer's own doctor was negligent in handling the situation, which contributed to the mental disturbance resulting in Mr. Cramer's suicide.  Had ICRM correctly diagnosed and informed Mr. Cramer, he would not have been subjected to the subsequent negligence of his own doctor.  ICRM, of course, argued that it had not caused any harm to Mr. Cramer and, in any event, that the effect of its own negligence, if any, was too attenuated to place liability on it for the subsequent suicide.  In the language of torts law, ICRM argued that its conduct was not the "proximate cause" of Cramer's suicide. 

There were additional complications.  Traditional tort concepts may excuse a negligent actor from liability where the immediate cause of an injury can be attributed to an intervening force that is unforeseeable, and the argument was made that suicide is an intentional act whose commission should break the chain of causation and relieve ICRM of liability.

The trial judge found Mrs. Carmer's liability theory too much of a stretch, and granted summary judgment to ICRM.  The case did proceed against Mr. Cramer's own doctor, and the jury found negligence and awarded some damages for economic loss (but not, surprisingly, for Mrs. Cramer's emotional distress).

The Idaho Supreme Court unanimously reverses.  It finds that under modern tort theories articulated in the Restatement 2nd of Torts, Sec. 457, it can be argued that the subsequent negligence of Mr. Cramer's doctor should be considered a foreseeable consequence of ICRM's own negligence, and that the intervening action of the suicide would not necessarily cut off liability but rather would be a factor to take into account in apportioning liability in light of modern concepts of comparative fault.  (That is, when an injury is attributable to many different factors, including the negligence or voluntary acts of a victim, the modern policy is to apportion responsibility for the injury among the various causative factors, and hold any given defendant liable for a proportionate share of the damages.)

The Supreme Court was also critical of the special verdict sheet and results returned by the jury, finding irreconcilable disparities which may reflect erroneous jury instructions.

A new trial is necessary now, for a jury to determine whether ICRM was negligent and how much its responsibility will be in terms of damages if it is found to be negligent.  Furthermore, the new trial will need to reopen the issue of whether Mrs. Cramer should also receive damages for her emotional distress, in light of the complexities of charging the jury and seeking a special verdict that yielded the erroneous result in the first trial.