Nurse Alicia Pettigrew can proceed with her claim asserting she suffered emotional distress from the fear of contracting AIDS due to a plastic surgeon's negligence, the 1st District Appellate Court decided Tuesday. This reversed Chicago's Cook County Circuit, which had granted summary judgment to Dr. Allen Putterman in the lawsuit.

Pettigrew alleged that Putterman dropped surgical scissors onto her hand, cutting her during an ophthalmic operation on a patient "suffering from the AIDS infection." Pettigrew's two-count lawsuit maintained that she suffered a laceration to her hand when Putterman handed her used surgical scissors in a negligent manner. The second count alleged Putterman's negligence caused Pettigrew to suffer emotional distress resulting from the fear of contracting AIDS. Each of Pettigrew's several tests was negative for HIV, Tuesday's decision said.

Putterman filed for summary judgment on the basis that the Illinois Supreme Court required proof of actual exposure to HIV in order to maintain a cause of action for fear of AIDS. He admitted the patient "turned out to be HIV-positive," but maintained that the patient's two positive HIV tests must be followed by a third positive confirmatory test before a sample can be considered HIV-positive under Illinois law. The third test was inconclusive.

The Cook County Circuit ruled for Putterman in January 2001, saying that the nurse "had not presented evidence that the... surgical patient was infected or that plaintiff has tested positive for HIV. Consequently, the 'actual exposure' test has not been met." Pettigrew then appealed to the 1st District, which reversed the lower court's ruling.

"Defendant presented no evidence that the surgical patient was not HIV-positive," the Appellate court said. "Construing defendant's admissions... and the two HIV-positive screening test results liberally in favor of plaintiff... we find the evidence sufficient to provide 'some factual basis' for plaintiff's claim that she was actually exposed to HIV." Putterman's lawyer, Mark C. Fedota, said "We're disappointed that in a subject area still so emotionally charged as this, that the court would apparently allow the complete lack of a scientific basis for the plaintiff's contention, including her own testimony that as a nurse she knew that her concern was illogical."

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