Faya v. Almarez

[Editor’s Note: The casebook Bioethics: Health Care, Human Rights, and the Law (Arthur B. LaFrance ed., 2d ed. 2006) erroneously gives the title of this case as “Faya v. Almarez.” The correct title is “Faya v. Almaraz.”] Dr. Rudolph Almaraz was an oncologist who had known that he was HIV positive since 1986. Despite knowing of his condition, Almaraz performed a mastectomy on Sonja Faya (plaintiff) in October 1988. The following March, Almaraz also removed a hematoma from Faya. In November 1989, Almarez performed a procedure on Perry Rossi (plaintiff) to remove a benign lump. Prior to the procedure on Rossi, Almaraz was diagnosed with cytomegalovirus retinitis, which indicated that Almaraz had full-blown AIDS. According to the medical literature, transmission of HIV from physician to patient during surgery was extremely low if the physician employed proper barrier techniques. The American Medical Association had adopted a policy statement that although no cases of HIV transmission from a physician to a patient had been reported, such transmission of HIV during a procedure was theoretically possible, so HIV-positive physicians should either refrain from performing procedures that posed a significant risk of HIV transmission or perform these procedures only with the consent of the patient and permission from a review committee. In December 1990, shortly after Almaraz died, Faya and Rossi learned that Almaraz had been HIV positive when he performed the procedures on them. Both Faya and Rossi tested negative for HIV. Faya and Rossi sued Almaraz’s estate (defendant) for compensatory and punitive damages on the ground that they had suffered emotional and mental distress because of the fear that they might have contracted HIV. Faya and Rossi argued that because there was a foreseeable risk of HIV transmission from Almaraz, Almaraz’s duty of care included an obligation to disclose this risk, so Almaraz had been negligent in failing to disclose his HIV-positive status to them. The court dismissed Faya and Rossi’s lawsuit for failing to state a claim, and they appealed.