Brzoska v. Olson

Supreme Court of Delaware · 1995 · Torts

TortsBatteryFraudulent MisrepresentationFear of DiseaseInformed ConsentAIDS phobiaactual exposurebattery

Facts

The plaintiffs were 38 former patients of Dr. Raymond Owens, a dentist who learned in 1989 that he was HIV-positive and later died of AIDS in 1991. After his death, the Delaware Division of Public Health reviewed his practice, found his sterilization and precautionary methods better than average and the risk of patient exposure very small, and notified former patients to obtain HIV testing; none of the 630 tested patients were HIV-positive. Plaintiffs alleged they underwent dental procedures in 1990 or 1991, that their gums bled, and that Dr. Owens had lesions, weakness, and memory loss, but they did not allege that any plaintiff contracted HIV or was actually exposed to HIV. Some plaintiffs also alleged that when they asked Dr. Owens whether he had AIDS, he falsely denied it.

Issue

Can patients recover for battery based on allegedly offensive touching by an HIV-positive dentist, or for fear of contracting AIDS, without proof of actual exposure to HIV or physical injury? Can patients who were directly lied to about the dentist's HIV status pursue fraudulent misrepresentation claims, and if so, what damages are available?

Rule

For a battery claim based on fear of contracting disease, offensive contact is judged by an objective reasonableness standard, and fear of disease is per se unreasonable absent actual exposure to a disease-causing agent. Thus, in an AIDS setting, a plaintiff must show actual exposure to HIV to sustain a battery claim based on offensive touching. In the medical or dental setting, battery is limited to performing a procedure to which the patient did not consent, not merely failing to disclose risks; inadequate disclosure sounds in negligence. Fraudulent misrepresentation requires a knowingly false material representation, reliance, and damages, but absent physical harm recovery is limited to economic damages directly caused by the misrepresentation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, dental patient Elena Ruiz later learned that her dentist, Dr. Martin Keller, had been HIV-positive during a routine crown fitting. Elena can show only that her gums bled during the procedure; she has no evidence that Dr. Keller bled, had a cut that contacted her mouth, or otherwise transmitted any fluid to her.

If Elena sues for battery based on offensive contact and fear of contracting AIDS, what is the most likely result?

Explanation. Battery requires harmful or offensive contact, and offensiveness is measured objectively by whether the contact would offend a reasonable sense of personal dignity. In fear-of-disease cases, the majority adopted an actual exposure test: without actual exposure to HIV, fear of contracting AIDS is per se unreasonable. Because Elena shows only treatment by an HIV-positive dentist, not actual exposure to HIV, the touching is not offensive as a matter of law. (Derived from Brzoska v. Olson (n.d.).)