By Tom Ryan

In this day and age the courts are often called upon to decide disputes arising from changes in science or medicine.

The AIDS epidemic has led to a variety of court cases dealing with issues such as rights of privacy, discrimination in employment or housing, as well as claims for damages for alleged personal injury.

Maryland's highest court, the Court of Appeals, has now been asked to clarify Maryland law on another issue, this time involving transmission of HIV in a laboratory setting.

Back in 1993, the Court of Appeals, in the case of Faya v. Almaraz, faced the issue of what duty a surgeon had to warn his patients that he was HIV-positive. The doctor in that case did not tell patients, and after he died his estate and the hospital were sued by patients for emotional distress because of fear they would contract AIDS.

The appellate court held that it was an issue for a jury to decide if a surgeon had a duty under the circumstances to either advise his patients that he was HIV-positive, or refrain from operating. However, the court held that any recovery was limited to emotional distress demonstrated by physical symptoms during the reasonable "window of anxiety" before testing showed that they were not HIV-positive.

The Court was recently asked by the U.S. Fourth Circuit Court of Appeals, through a procedure in which the federal court can certify legal issues to the highest state court for guidance, to address the case of Doe v. Pharmacia & Upjohn, Inc. The husband of Ms. Doe (not her real name) had been employed as a laboratory technician by a company in Montgomery County that produced HIV cultures to be sent to another facility for use in a test for HIV antibodies.

In the mid-1980s Pharmacia began testing its employees like Mr. Doe who were exposed at work to both the HIV-1 and much rarer HIV-2 virus to regular testing for HIV-1. There were no test kits for the rare HIV-2 strain available until 1991.

According to Ms. Doe's lawsuit, the HIV tests the employer used would detect either virus on the first part of the test, but only HIV-1 on part 2. Mr. Doe was told he had tested "false positive," but not about the possibility of HIV-2.

In the year 2000 he was diagnosed with AIDS from what turned out to be an HIV-2 infection contracted at work, and his wife has also tested positive. She contends they would not have engaged in unprotected marital sex had they known of the possibility of HIV-2 from the testing.

She sued her husband's former employer for negligent operation of the HIV production lab, for failure to test for HIV-2, and for negligent failure to warn and for misrepresentation of the results of the HIV testing.

The trial court dismissed her case, relying upon earlier case law that held that an employee's wife exposed to asbestos fibers from his clothing had no claim against the employer.

The reasoning is that while an employer owes a duty to its employee to provide a safe work environment, that duty does not extend to strangers to the workplace. The Court of Appeals will now be called upon to say whether issues like the AIDS virus impose additional duties of care upon employers.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.