BRZOSKA V. OLSON 668 A.2d 1355 (1995) CASE BRIEF

BRZOSKA V. OLSON

668 A.2d 1355 (1995)

NATURE OF THE CASE: Brzoska (P), patients, filed an action against Olson (D), administrator and insurer, for damages cause by Ps' asserted exposure to HIV/Aids while receiving dental treatment by D's decedent. The court granted D's motion for summary judgment. The patients appealed the ruling with regard to the battery and misrepresentation claims.

FACTS: Dr. Owens had been engaged in the general practice of dentistry in the Wilmington area for almost 30 years. Dr. Owens was advised by his physician that he was HIV-positive. Dr. Owens continued to practice, but his condition had deteriorated by the summer of 1990. Toward the end of 1990, he exhibited open lesions, weakness, and memory loss. In February, 1991, his physician recommended that Dr. Owens discontinue his practice because of deteriorating health. Shortly thereafter, on February 23, Dr. Owens was hospitalized. He remained hospitalized until his death on March 1, 1991. Dr. Owens' patients were notified that their dentist had died from AIDS and that there was a possibility that they were exposed to HIV. On March 21, 1991, patient Thomas S. Neuberger ('Neuberger') filed a proposed class action complaint in the Court of Chancery seeking injunctive relief and the impressment of a constructive trust on the assets of the Owens' estate and applicable professional liability insurance for the benefit of patients who might develop AIDS. The Court of Chancery ruled, however, that the claims alleged essentially sounded in tort and that an adequate remedy for damages existed at law. Thereafter, the 38 plaintiffs constituting the putative class in the Chancery Court action filed the underlying action in the Superior Court. Ps did not allege the contraction of any physical ailment or injury as a result of their treatment, but claimed to have suffered 'mental anguish' from past and future fear of contracting AIDS. They also alleged embarrassment in going for medical testing to a State clinic which they found to be 'an uncomfortable environment.' Plaintiffs sought compensation and punitive damages for mental anguish, the cost of medical testing and monitoring, and reimbursement for monies paid to Dr. Owens for dental treatment. They sued under (i) negligence; (ii) recklessness; (iii) battery; (iv) fraudulent misrepresentation; and (v) false pretenses. The negligence and recklessness claims, in essence, alleged professional malpractice, while the battery count sought recovery for 'unconsented' and 'offensive touching.' The fraudulent misrepresentation and false pretense claims both related to various representations and statements made by Dr. Owens to certain patients who, upon inquiry as to his condition, were provided with allegedly deceptive answers concerning his health. D moved for summary judgment on two distinct grounds: (1) the claims were barred since they were not asserted against the estate within the eight-month period after the decedent's death as provided in 12 Del. C. 2102(a); and (2) they did not state a cognizable claim for damages in the absence of a showing of physical injury. The Superior Court ruled that plaintiffs had no basis for recovery for 'fear of AIDS' in the absence of an underlying physical injury. Accordingly, the court dismissed all counts of the complaint. Ps appealed the Superior Court ruling with regard to the battery and misrepresentation claims.

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