Patricia decides to comply with state law and allow her two-year-old daughter to be vaccinated. Her daughter suffers a terrible reaction to the vaccination and winds up staying in the hospital for two weeks, during which time Patricia and her husband must take unpaid leave from work. Patricia wants to sue the manufacturer of the vaccine for negligence. Can she recover damages?
While taking his son to an urgent care center, Patrick goes into the public restroom, washes his hands, and dries them with paper towels. When he throws the paper towels into the garbage, Patrick feels a sharp prick on his hand. Patrick pushes aside the towels and finds a syringe in the garbage can. Patrick leaves the syringe in the garbage can and returns to the waiting room. When he gets home, Patrick tells his wife about the syringe in the trash can. His wife is afraid that the syringe might carry the HIV virus. Patrick gets afraid, too. What if he gets AIDS now? Patrick goes into a deep depression for months until it is finally determined that, no, he is not HIV positive. Can Patrick recover damages from the urgent care center for the emotional trauma he went through?
A tort is a legal wrong or injury committed by one person against another. It is not a crime. This is a civil action. In a civil action the state prosecutor is not involved. Instead, a private party or a government agency brings a lawsuit against another private party. In other words, a person hires a lawyer and sues, for example, a doctor or insurance company or medical manufacturer. The person or corporation being sued then also hires a lawyer to handle the legal action.
A recent example of an action for tort liability is Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc. In that case a hearing-impaired Wal-Mart employee was told to attend an employee training session even though there would be no sign language interpreter at the session. The employee refused to attend the training session, and his manager fired him. The employee sued the parent company under the ADA and won $3,500 in back pay and $75,000 in punitive damages. (Punitive damages aren’t available in every proceeding for damages, and in fact are rare.)
What makes the case unusual is that it is one of the first times that a parent company was held liable for the actions of a midlevel manager under the ADA. Wal-Mart argued on appeal that it should not be held responsible for the manager’s actions because the parent company had a written training and education policy to help its managers comply with the ADA. The employee argued, though, that the policy was rarely used. The court ruled that it is not enough for employers to have policies against discrimination. The company must make a good faith effort to educate its employees about the ADA.
Liability is a general legal term for responsibility. If you injure another person, you are responsible to that person for the injury you caused. In legal terms, you are “liable” to that person. Exactly what the responsibility will mean to you depends on your situation. Damages usually mean a monetary award. Tort liability is used to discourage people from hurting others by requiring them to compensate victims for their injury. The person responsible for hurting you must pay you in order to make you “whole” again.
The tort remedies available include both injunctive relief and a make-whole remedy. You may also be eligible to receive compensatory damages and punitive damages. Under the ADA, compensatory and punitive damages amounts are capped based on the size of the employer. For example, small employers with fewer than 101 employees are liable for no more than $50,000 total in compensatory and punitive damages. Employers with more than 500 employees are liable for no more than $300,000 total in damages. The court, at its discretion, may award attorney’s fees to the prevailing party.
POSSIBLE REMEDIES
Compensatory damages: These may include compensation for any indirect injuries you suffer as a natural consequence of negligence or discrimination (such as pain and suffering) as well as compensation for your direct injuries (such as back pay).
Punitive damages: These damages are intended to punish the wrongdoer and to deter others from engaging in similar conduct. Courts award these damages when the wrongdoer acts with malice or reckless indifference to your rights.
Injunctive relief: This is a court order directed at wrongdoers, requiring them to engage in certain types of action. The order might tell them to stop violating the law and not do it again in the future. Or an order might require them to take certain affirmative steps to restore things to the position they would have been in had the law not been violated, such as hiring you if you were wrongfully denied a job.
Make-whole remedy: This puts you in the position you would have been in had there been no wrongdoing. For example, if you are illegally fired from your job, the make-whole remedy would include reinstating you, paying you the wages (with interest) you would have earned had you remained employed, providing the seniority and pensions benefits you would have been credited if you had remained employed, and reimbursing you for any medical expenses you incurred that would have been covered under the employer’s health plan.
Under the ADA and the Rehabilitation Act, you are required to file a complaint with the Equal Employment Opportunity Commission before you can bring a tort action. For an explanation of this process, see Chapter 12.
To win on a tort claim under the ADA or the Rehabilitation Act, you must prove three things:
To qualify as disabled, you must suffer from a physical or mental impairment that substantially limits one or more of your major life activities. Exactly what constitutes “substantially limits” is an issue that comes up again and again in the courts. You must prove your disability by offering evidence that the extent of the limitation on a major life activity in your own experience is substantial. For example, let’s imagine that you are a truck driver, recently diagnosed with amblyopia (poor vision caused by abnormal visual development secondary to abnormal visual stimulation). You are no longer able to drive a car, much less a truck. Are you disabled? Yes, because seeing is a major life activity. If your vision problem can be corrected with glasses, however, you are no longer disabled as defined by the ADA.
To show that you were qualified for the job in question, the court will look at whether you can perform the essential functions of the job with or without reasonable accommodation. Do you have the appropriate licensing, experience, or educational requirement? If not, then you are not a qualified individual and you will not be able to prove your claim. To determine whether a function is essential to the job, the court will look at written job descriptions and the work experience of those in similar jobs and consider whether the function is fundamental to that position. One job function that is always considered essential is the ability to show up for work on time. If alcoholism or substance abuse causes a person to be absent or late excessively, then that person cannot perform an essential function of the job and is not qualified within the meaning of the ADA.
In most jurisdictions you must prove that you were fired or disciplined based solely on your disability. In other jurisdictions you only have to prove that your disability played some part in your termination or discipline. It is helpful if you can show that you were replaced by a nondisabled person or that you were treated less favorably than nondisabled employees. This does not mean that every decision your employer makes gives you an ADA claim if you are disabled. It only means that you cannot be discriminated against because of your disability.
In one case, a man’s job required that he have a valid driver’s license. When the man was convicted four times of driving under the influence of alcohol, he was demoted to a position that required no driving. The man sued his company, claiming that his alcoholism was a disability and that his demotion was based on this disability in violation of the ADA. The man lost his case because he could not prove that his alcoholism, rather than his poor driving record, was the cause of his demotion. Furthermore, the court found that to make the company liable under the ADA or the Rehabilitation Act in this situation would undermine laws that protect society from the dangerous behavior of others, such as drunken driving.
Once you give your evidence, the burden shifts to the defendant (the person or the company you are suing). The defendant must give some nondiscriminatory reason for firing or disciplining you. After that you may offer evidence that the employer’s real reason was discriminatory. The main burden of persuasion lies with you to show that your employer fired or disciplined you because of your disability. If you suffer from alcoholism or substance abuse, you are required to prove, among other things, that you successfully completed a supervised drug rehabilitation program and that you no longer use illegal drugs. Alcoholism and substance abuse are not, in themselves, included in the ADA’s definition of a disability.
Traditionally the tort system is based on the assumption that by making parties responsible for the consequences of their actions, the parties will act in the most appropriate manner possible. In any action for tort liability, you, the patient, have the burden of proving that the other party’s action caused your injury. For example, some people believe that childhood vaccinations cause autism. To sue for tort liability on this issue, you would have the burden of proving that the vaccine your child received caused your child to become autistic. This can be difficult to do.
Another hurdle is that some jurisdictions recognize that all vaccines, by their nature, carry some risks, even if the vaccines are properly manufactured. This is known as being unavoidably unsafe. Other products that are unavoidably unsafe include knives, firearms, and explosives. To win a tort liability lawsuit against a vaccine manufacturer, you would have to prove not only that the vaccine caused the injury, but also that the manufacturer was negligent in making the vaccine or in failing to warn of the risk associated with vaccines.
In general, the manufacturer is not required to warn you directly of the risks of a vaccine. Rather, the manufacturer must inform your doctor of the risks. Your doctor then has the duty to explain these risks to you. If your doctor does not explain these risks to you and you are injured, then you may have a medical malpractice claim against your doctor for violating your right to informed consent.
In 1976 Congress believed the country was facing an epidemic of a form of influenza known as swine flu. A similar strain of influenza had caused 20 million deaths worldwide. Health officials wanted every person in the country to be vaccinated. Drug manufacturers, however, refused to release the vaccination because their insurance companies refused to cover any liability for adverse reactions. Congress enacted the Federal Tort Claims Act, which gave swine flu vaccine manufacturers immunity from liability for injuries caused by any adverse reactions to the vaccine. The FTCA allowed those who were injured by the vaccine to seek damages directly from the federal government. More than 40 million people received the swine flu vaccination. By 1985 at least 4,165 people filed claims under the FTCA for adverse reactions to the vaccine. Approximately 1,600 lawsuits were filed after the government denied claims for vaccine-related injuries. These were usually settled before reaching the courtroom. Today you may bring a vaccine-related claim under the National Vaccine Safety Act, which is discussed in Chapter 15.
The issue of liability for infecting others—or the potential to infect others—almost always comes up in the health care setting. That does not mean that it always involves patients and doctors. Some cases include security officers, drivers, or cleaning personnel. Some involve HIV-positive doctors who operated on patients without telling them about their (the doctors’) HIV status. Others involve patients who underwent surgery knowing they were HIV positive but who failed to inform their doctors. The most common scenario, though, is a health care worker who is accidentally stuck by a needle while treating a patient. Regardless of how the scenario comes about, it is time-consuming and difficult to prove that the person who exposed you to HIV should be held liable to you under the law.
ARTIFICIAL—AND POSSIBLY DEADLY
A very unusual form of HIV transmission occurs when women are artificially inseminated with sperm from men who are HIV positive. The only known instance in the United States happened to two women in Wisconsin, both of whom received sperm from a man who was HIV positive. Neither woman became infected. In Australia, eight women were artificially inseminated with sperm from an HIV-positive man. Four of the women became infected. Whether these women could recover damages in the courts from sperm banks or donors for becoming infected is not yet known.
Tort cases that involve the fear that one may be infected with HIV or AIDS are called AIDSphobia cases, fear of AIDS or fear of future disease. This is not the first time that fear of getting a disease sometime in the future brought about court cases. “Fear of cancer” was a common theme among people exposed to asbestos. Manufacturers of asbestos were sued repeatedly by people who had been exposed and were worried that, somewhere down the line, they would develop cancer because of the asbestos. The first fear of AIDS cases were decided along the same lines as the fear of cancer cases. As the years wore on, a few courts began to follow a different path, which will be discussed in greater detail in a moment.
In “AIDSphobia” cases, the ultimate question is not whether the fear is real, but whether the fear is reasonable. People claiming fear of AIDS have a legal responsibility to educate themselves about whether the risk of developing AIDS is realistic.
There are two lines of reasoning when it comes to tort liability and HIV. The majority of states follow a line of reasoning that requires “actual exposure” to HIV or AIDS. Actual exposure means that you were actually exposed to the virus. For example, it is not enough to say that you were stuck with a needle. You must prove that the needle that stuck you carried the virus at the time you were stuck. If you cannot prove actual exposure, you do not have a case of tort liability.
The other line of reasoning does not require that you show that you were exposed to the virus. You simply must show that you are a reasonable person and that you feared that you would be infected from the incident (such as a needle stick). In states that do not require you to prove actual exposure, fear of AIDS cases are much easier to prove.
The person bringing the lawsuit claims that she suffered emotional distress at the thought that she might get HIV or AIDS. How does she prove that she suffered emotional distress?
Distress is a difficult thing to prove and an easy thing to fake. Some people believe that fear of AIDS is no more reasonable than fear of lung cancer from second-hand smoke or fear of herpes—neither of which are claims that are allowed in a court of law. Of course you will be upset if you are stuck by a needle. The question is whether you should be allowed to sue for emotional distress before you even know whether the needle carried the virus.
A woman underwent surgery to have a tumor removed from her uterus. Unbeknownst to the woman, the doctor who performed the surgery was HIV positive. There was no indication that the doctor’s blood ever came into contact with the patient’s blood. The woman later found out that the doctor was HIV positive. Her HIV test turned up negative. Still, she sued the doctor for emotional distress due to her fear of getting AIDS. In California, you must prove not only that you were actually exposed to the virus, but also that it is more likely than not that you will be infected. The woman could show no actual exposure to the virus. Hence, she lost the case.
A hospital patient bit a security guard. The patient had AIDS, and the patient’s blood came into direct contact with the guard’s blood. The security guard tested negative for the virus; but because he was in fact exposed to the virus, he was allowed to claim emotional distress for his fear of getting AIDS.
A surgeon who knew he was HIV positive performed surgery on two patients. The patients were not informed that the surgeon was HIV positive. A year after the surgeries, the patients read about the doctor’s HIV status in the local newspaper. The patients were tested for the virus. Both patients were HIV negative. The patients sued the doctor’s estate and the hospital where the operations were performed. Both patients argued that the surgeon should have told them about his HIV status so they could choose another surgeon if they wanted to. The doctor’s estate and the hospital argued that the patients were never exposed to the virus. The patients won the case, however, because the court ruled that a reasonable person would suffer emotional distress after learning that the surgeon was HIV positive at the time of the surgery. The patients did not need to prove that they were actually exposed to the virus at all.
New Jersey does not require you to show that you were actually exposed to the virus. This state differs from the other states that do not require actual exposure to claim emotional distress by adding a “window of anxiety”—a time period. You can claim emotional distress only for the time in which an average person would have suffered emotional trauma. This is the “window of anxiety.”
How long would an average person suffer emotional distress? That depends on the medical data regarding HIV and AIDS that is available at the time. The current “window of anxiety” in New Jersey is 3 to 6 months. The court figures that after 6 months an average person should know for sure whether or not he is infected. Therefore, you can only claim emotional distress for 3 to 6 months, not a year or 2 years or 10 years. As more becomes known about AIDS and as testing methods become more reliable, look for that “window of anxiety” to narrow to a few weeks.