HIV misdiagnosis case could lead to more medical lawsuits
By: Freeman Klopott
Examiner Staff Writer
October 5, 2009
A three-judge D.C. Court of Appeals panel decision denying a District man the right to sue a clinic that misdiagnosed him as having HIV could open the doors for future success in suing doctors for emotional distress.
For nearly 20 years the D.C. Court of Appeals has slapped down lawsuits seeking payments for emotional distress when a patient has been misdiagnosed for a life-threatening disease, citing a court ruling that a patient must be in a "zone of physical danger" in order to claim negligence.
Late last week, a three-judge panel once again invoked the precedent and denied Terry Hedgepeth the right to sue the Whitman-Walker Clinic. In 2001, the clinic told Hedgepeth he was HIV-positive. He did not seek another test or get medical treatment. He turned down opportunities to get into government-sponsored programs that would have paid for AIDS-fighting medication.
Rather, according to the lawsuit, Hedgepeth spent nearly five years believing he had been sentenced to death. During that time, his suit claims, he fell into a deep depression, he heavily abused drugs and had sex with HIV-positive women because "there was no reason for [him] to live. But a second test in 2005, not performed at Whitman-Walker,revealed he was healthy, and he sued the clinic.
The panel of judges said Hedgepeth "suffered genuine and severe emotional distress," but ruled that his case could not go to a jury because Hedgepeth wasn't placed in any physical danger as a direct result of the misdiagnosis.
But in a concurring opinion, Judge Vanessa Ruiz said, "[T]his case warrants reconsideration by the full court of the ... 'zone of physical danger' requirement to cases where foreseeable and severe emotional distress is inflicted on a patient as a result of breach of the standard of care."
Hedgepeth's attorney, Jonathan Dailey, said he planned to appeal -- and he's excited at the prospects for change.
"[Hedgepeth] went through five years of hell and when he was freed from a death sentence he had no cause of action," Dailey told The Examiner. "This could lead to the correcting of an action that should have been changed years ago."
An attorney for the Whitman-Walker Clinic declined comment.
The 1990 decision that created the "zone of physical danger" precedent was designed to prevent a flood of emotional distress lawsuits. Dailey said he believed if the court chose to overturn the precedent, it would narrow its ruling to doctor-patient relationships.
