The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm: (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease. (Note: I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)
Do the people in the last grouping have a claim for damages under Tennessee law? That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?
I believe the answer to that question is "yes." The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993). The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus) The Court answered this question "no" and dismissed the case.
However, in reaching this result, the Court said as follows:
we hereby formally adopt the "actual exposure" approach [to imposing liability]. In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be "confined to the time between discovery of the [exposure] and the negative medical diagnosis or other information that puts to rest the fear of injury." [Citations omitted.]
I believe Carroll is still good law. Thus,l I believe those people who can demonstrate they received contaminated epidural steroid injections (and perhaps other types of steroid injections as well, depending on how the facts develop) and who suffer emotional distress as a result will be able to recover damages for emotional distress from the time between the discovery of the exposure until the time he or she receives a negative medical diagnosis or other information that puts to rest the fear of contracting fungal meningitis. There will be a big fight over whether expert proof of emotional distress will be required.
We still don’t know exactly how long people are at risk for contracting fungal meningitis after they are exposed to it. The Centers for Disease Control says the exposure period is four weeks or longer. In fact, the CDC recommends that anyone with symptoms linked to fungal meningitis in the "several months" following exposure should seek prompt medical attention even if they have been previously evaluated. Here are the symptoms to be concerned about:
- New or worsening headache
- Sensitivity to light
- Stiff neck
- New weakness or numbness in any part of your body
- Slurred speech
- Increased pain, redness or swelling at your injection site
As I have said in other posts, most recently in this post called "Fungal Meningitis Outbreak: Lots Of Questions Remain," there is still a lot we do not know about all of the legal consequences of the fungal meningitis outbreak. However, I believe Tennessee law will permit those exposed to contaminated steroids but avoided contracting fungal meningitis to be able to seek damages for emotional distress. Of course, such people will still have to prove the liability of the product manufacturer or others involved.
Other posts on the fungal meningitis outbreak:
Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases
Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?
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