CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend, who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS. She has tested negative for the disease. Here is a copy of the complaint.
Alomar’s attorney says the lawsuit is frivolous (surprise) and says his client is healthy and wants to keep his health status private. Hmmm.
Would the ex-girlfriend have a claim in Tennessee? Perhaps. Tennessee does recognize a claim for negligent transmission of a sexual disease, but recall she did not get a sexual disease. Her claim is for emotional distress arising from fear of contracting a disease that she did not get.
The closest case on point in Tennessee that I can recall is Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997), where a hospital was sued for allegedly exposing a patient to a risk of HIV infection. The court denied recovery because it found that there was no proof of actual exposure to the virus but said that if there was exposure liability would attach "only to the extent that the resulting emotional distress was within the range of that experienced by a an ordinary reasonable person under the circumstances." The Court also said that "[d]amages recoverable … 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 contracting AIDS."
The Complaint alleges 45 months of unprotected sexual relations ending in February, 2006. Alomar allegedly falsely told the plaintiff that despite symptoms consistent with HIV/AIDS during a portion of this period that he had been tested and was negative for the disease. He received a positive diagnosis on February 6, 2006 and while it is unclear exactly when plaintiff was tested (and received a negative test result) it appears it was within 9 days. (See paragraphs 42-44 of the complaint.)
If my assumption of the time of her negative test is correct, and if the negative test is conclusive evidence that she did not have the disease, Tennessee law would probably limit the damages for emotional distress from February 6 until the date she got the test results. If from a scientific standpoint one negative test is not conclusive, it is possible that the window for damages would remain open until conclusive results were obtained.
The Complaint also alleges a cause of action for outrageous conduct. Assuming the facts stated in the complaint are true, it is my opinion that a cause of action for outrageous conduct would be stated underTennessee law. The damages would still probably be limited as set forth in Bain but punitive damages could be recovered if outrageous conduct was proven.