Summary
In Schulman v. Prudential Ins. Co. of Am., 226 A.D.2d 164 (N.Y.App.Div. 1996), the court found that the recipient of an erroneous diagnosis of Human Immunodeficiency Virus ("HIV") positive status stated a claim under the `guarantee of genuineness' theory of negligent infliction of emotional distress, but only after finding that defendants who administered the test owed a duty of care to the plaintiff.
Summary of this case from In re Air Crash at Belle HarborOpinion
April 9, 1996
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
The erroneous report of an HIV positive finding following blood analysis is a "`special circumstance'" that provides assurance that a claim to recover for negligent infliction of emotional distress as a result of the erroneous report is genuine and not spurious, and therefore plaintiff's claim may be maintained ( Johnson v. State of New York, 37 N.Y.2d 378, 382). It is clear that the defendants who handled the blood sample and issued the erroneous report owed a duty of care, under the circumstances herein, to this plaintiff, even in the absence of a direct relationship with him ( supra, at 382-383; see, McKinney v Bellevue Hosp., 183 A.D.2d 563, 565-566). Since the so-called Execumed defendants, enumerated above, had no connection to the vials of blood giving rise to the erroneous result, we modify to grant their cross-motion to dismiss.
We have considered the remaining defendants' additional contentions and find them to be without merit.
Concur — Murphy, P.J., Milonas, Ross, Nardelli and Tom, JJ.