## Facts

- Dr. Rudolph Almaraz, an oncological surgeon at a hospital, knew he was HIV-positive beginning in 1986.
- He performed surgery on Sonja Faya in October 1988 (mastectomy) and again in March 1989 (hematoma removal).
- He performed surgery on Perry Mahoney Rossi in November 1989 (removal of a benign lump).
- Before Rossi’s surgery, Almaraz was diagnosed with cytomegalovirus retinitis, indicating advanced AIDS.
- Medical literature at the time treated surgeon-to-patient HIV transmission during surgery as extremely unlikely with proper barriers, with no documented cases, but a theoretical possibility.
- Professional ethical guidance stated that HIV-positive physicians should avoid procedures posing a significant transmission risk or perform them only with patient consent and review approval.
- After Almaraz’s death, plaintiffs learned he had been HIV-positive when he operated on them; both later tested HIV-negative.
- Plaintiffs alleged severe emotional distress and physical symptoms (including headaches and sleeplessness) and incurred costs for repeated HIV testing and medical monitoring due to fear of infection.

## Issues

1. Whether an HIV-positive surgeon has a legal duty, under negligence and informed-consent principles, to disclose that condition to patients before performing invasive surgery.
2. Whether a patient may recover damages for fear of contracting AIDS when the patient ultimately tests HIV-negative.

## Decision

- The court reversed the dismissals for failure to state a claim and remanded for further proceedings.
- The court held that an HIV-positive surgeon performing invasive procedures may have a duty to disclose HIV status when the procedure and physician’s condition create a foreseeable, non-trivial risk of transmission material to a reasonable patient’s decision.
- The court held that emotional distress damages for fear of AIDS may be recoverable without proof of HIV infection if the plaintiff alleges actual exposure to a non-speculative risk and objective manifestations of distress, including testing and monitoring expenses.
- The court allowed claims against the hospital and related defendants to proceed, leaving the scope of institutional duties and liability for factual development.

## Legal Principles

- Informed consent requires disclosure of material information that a reasonable patient would consider significant in deciding whether to undergo a procedure.
- A physician’s communicable-disease status may be material when it creates a foreseeable and non-negligible transmission risk in the contemplated procedure.
- Emotional distress is compensable when the fear is reasonable and tied to actual exposure to a genuine risk, and when the distress is supported by objective manifestations or documented consequences.
- Courts may reject categorical bars on “fear of disease” recovery while limiting liability by requiring actual exposure and objective evidence, rather than generalized anxiety.

## Conclusion

The court permitted patients to pursue negligence and informed-consent claims based on non-disclosure of a surgeon’s HIV-positive status and allowed recovery for reasonable fear-of-AIDS emotional distress, even with negative HIV tests, where plaintiffs alleged actual exposure to a non-trivial risk and objective manifestations and costs of distress.


Faya v. Almaraz, 620 A.2d 327 (Md. 1993)