Opinion
No. 04-07-00595-CV
Delivered and Filed: May 7, 2008.
Appeal from the 81st Judicial District Court, Atascosa County, Texas, Trial Court No. 02-10-0751-CVA, Honorable David Peeples, Judge Presiding.
Affirmed.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Appellants appeal the trial court's order granting a no-evidence summary judgment as to appellants' claims that they have a fear of contracting HIV or AIDS. Appellants contend that the trial court erred because a letter sent by the appellee, Jourdanton Hospital Corporation (the "Hospital), was either: (1) a judicial admission that the appellants' fear of contracting HIV or AIDS was reasonable; or (2) evidence that the appellants were actually exposed to HIV or AIDS. We affirm the trial court's order.
Background
In March of 2002, the Hospital sent a letter to the appellants, who were among other patients treated at the Hospital between June 4, 2001, and January 4, 2002, stating a concern that some of its patients "may have been exposed to medication that could have been contaminated and might cause illness." The Hospital stated its concern was based "on the possibility that a nurse, whom we now know is HIV positive, may have contaminated one or more vials of Demerol." The appellants were notified because they were treated at the Hospital between the dates noted and they received Demerol during their treatment. In the letter, the Hospital recommended that the patients take a free blood test to rule out the possibility that they were infected.
The appellants subsequently sued the Hospital alleging, among other claims, that they suffered an injury based on their fear of contracting HIV or AIDS. The Hospital filed a no-evidence motion for summary judgment which the trial court granted as to all claims relating to the allegation that the appellants "have suffered some injury as a result of being exposed to or have contracted either HIV infection or AIDS." The trial court severed these claims from the appellants' remaining claims, and the appellants appeal.
Standard of Review
A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Id. at 582. We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id.
Discussion
In Drury v. Baptist Mem'l Hosp. Sys., 933 S.W.2d 668, 674-75 (Tex.App.-San Antonio 1996, writ denied), this court decided that the better approach to a mental anguish claim based on the fear of contracting HIV or AIDS is to require such fear to be "reasonably based upon circumstances showing actual exposure to the disease causing agent." "In the absence of some proof of actual exposure to HIV or AIDS, we [held] that any fear of contracting HIV or AIDS is, as a matter of law, unreasonable." Id. at 675; see also Baird v. Mervyn's, Inc., No. 3-99-CV-1057-BD, 2000 WL 295616 (N.D. Tex. 2000) (citing Drury as support for summary judgment against plaintiff who offered no evidence of actual exposure and who admitted that she did not know whether a needle, which was stuck in the pocket of a pair of jeans she purchased, had been contaminated with HIV-tainted blood or bodily fluid).
The appellants attempt to distinguish Drury on the basis that the actual sample of the blood alleged to be HIV positive in that case had been retained; therefore, the defendant could prove that the plaintiff had no chance of contracting HIV. Our holding, however, was not so limited. Applying Drury in this no-evidence summary judgment context, the appellants had the burden "to present evidence raising an issue of material fact as to" their actual exposure to HIV or AIDS. Mack Trucks, Inc., 206 S.W.3d at 582; Drury, 933 S.W.2d at 675. The appellants argue that they satisfied this burden by presenting the Hospital's letter. Although the Hospital's letter expressed the possibility of exposure, the letter is not, as a judicial admission or otherwise, evidence sufficient to raise an issue of material fact as to the appellants' actual exposure. Accordingly, the appellants failed to satisfy their burden, and the trial court properly granted the no-evidence motion for summary judgment.
The appellants also contend that Drury failed to address the argument that, under Krishnan v. Seulveda, 916 S.W.2d 478, 482 (Tex. 1995), mental anguish damages are generally recoverable without physical injury. This argument is unavailing because we clearly held in Drury that mental anguish damages based on a fear of contracting HIV or AIDS are not generally recoverable absent some proof of actual exposure. Drury, 933 S.W.2d at 675.
Conclusion
The trial court's order is affirmed.