Suits based on AIDS fear dismissed Judge voids claims sparked by AIDS-infected surgeon.

May 24, 1991|By Raymond L. Sanchez | Raymond L. Sanchez,Evening Sun Staff

A city Circuit Court judge has thrown out two lawsuits against Johns Hopkins Hospital and the estate of a prominent surgeon who died of AIDS, ruling that damages cannot be awarded simply for fear of exposure to the AIDS virus.

"It is a basic tenet of tort law that courts will award compensation for injury caused by the wrongful act of another," Judge Joseph H.H. Kaplan said in an opinion yesterday. "In this case, however, the injury claimed by the plaintiff is the fear that something that did not happen could have happened.

"This court cannot, as a matter of law, allow recovery for that fear."

Lawyers for the hospital and the estate of the doctor, Rudolph Almaraz, who died Nov. 16, had filed dismissal motions. Kaplan granted those motions.

One lawsuit was filed on behalf of former patient Perry M. Rossi and her husband, Dennis, who sought $32 million in damages. They claimed the 41-year-old surgeon and the hospital failed to disclose the illness to patients.

A $200 million lawsuit was filed on behalf of former patient Sonja Faya, of Ellicott City, on whom Almaraz operated in 1988 and 1989.

The patients have not tested positive for the acquired immune deficiency syndrome virus, said the plaintiffs' lawyers, who vowed to appeal the decision.

"The decision is a major step backward for the citizens of Maryland because . . . it encourages physicians and surgeons not to reveal if they're infected with AIDS," said Jonathan Schochor, who represented Rossi. Schochor said the American Medical Association has urged AIDS-infected members to refrain from performing surgery and other invasive procedures or disclose to their patients they are infected.

If the decision stands, Maryland could become a "haven for AIDS-infected doctors," he said.

Almaraz had performed surgery on an estimated 1,800 patients at Hopkins since January 1984. Schochor said about 35 former patients have consulted him about possible lawsuits.

"The decision just makes no sense," said Joel M. Abramson, who represented Faya. "She did not give consent to a doctor who had AIDS to operate on her."

But Paul Strain, who represented Hopkins, said the lawsuits were born out of a storm of public misunderstanding about AIDS.

"When you think about all the human tragedies associated with AIDS that are real," he said, "for the court to have permitted a lawsuit like this on behalf of people who have no real injury would have been very wrong."

Four other multimillion-dollar lawsuits against the doctor and Hopkins have been filed in Baltimore Circuit Court and the state Health Claims Arbitration Office. The defendants' lawyers said they also expected those lawsuits to be dismissed.

Almaraz, a breast cancer specialist, knew he was infected with the AIDS virus when he first saw Rossi on Oct. 7, 1989, court records said. He was diagnosed with full-blown AIDS later that same month. On Nov. 4, he removed a non-malignant lump from Rossi's breast at Hopkins.

Kaplan said there have been no reported surgeon-to-patient transmissions of the AIDS virus. The opinion said a positive test for the AIDS virus after the first six months of potential exposure is extremely rare.

The threshold issue was whether the plaintiffs could be compensated for "fear" of having been exposed to the disease. Kaplan noted that the plaintiffs lacked medical proof of exposure to the virus. "Without a compensable injury," he wrote, "all counts must fail as a matter of law."

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