# FILED Nov. 29, 19 95 Cecil Crowson, Jr . Appellate Court Clerk JERRY BAIN and wife SUE BAI N, )

) Plaintiff s/Appellees, ) ) ) Wilson Circu

it ) No. 8487 VS. ) ) Appeal No. ) 01-A-01-9503-CV-00120 DR. WAYNE WELLS, ) ) Defend ant, ) ) NATI ONAL

MEDI CAL EN

TERPRI SES, ) INC. , NEW BEG

INN ING S CENTER, ) UNIVERSI

TY MEDICAL

CENTER AND ) NATIONAL RECOVERY CENT ERS OF ) AMERICA, ) ) Defend ants/Appe

llants. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CI RCUIT COURT OF WI

LSON COUNTY AT LEBANON, TE

NNESSEE
HONORABLE B OBBY CAPERS, JUDGE
HENRY CL

AY BARRY 106 S. Colle ge St. Lebanon, Tennessee

37087 ATTORNEY FOR PLAI

NTIFFS/APPEL

LEES
MOO DY, WH ITFIE LD & C AS TELLA RIN William C. Moody 95 White Bridge Road Suite 509 Nashville, Tennessee 37205 ATTORNEY FOR DEFENDANTS/APPEL LANTS AFFIRMED AND

REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

JERRY BAIN and wife SUE BAI N, )

) Plaintiff s/Appellees, ) ) ) Wilson Circu

it ) No. 8487 VS. ) ) Appeal No. ) 01-A-01-9503-CV-00120 DR. WAYNE WELLS, ) ) Defend ant, ) ) NATI ONAL

MEDI CAL EN

TERPRI SES, ) INC. , NEW BEG

INN ING S CENTER, ) UNIVERSI

TY MEDICAL

CENTER AND ) NATIONAL RECOVERY CENT ERS OF ) AMERICA, ) ) Defend ants/Appe

llants. )

O P I N I O N The captioned defendant, Dr. Way ne Wells, was dismissed by nonsuit and is not involved in this appeal. The remaining defendants have been granted interlocutory appeal from the o

rder of the Tria l Judge ove

rruling their moti on for sum

mary judgmen t.
In respect to the appe

llants, the complaint alleged:

. . . . II . That the corporate defendants are for-profit corporations doing bu siness in Wil son County , Tennes see, und er their corporate names or as D/B/As here tofore listed as defendants.

. . .

. . . . IV. T hat the de fendant s have a p olicy

of not isola

ting pat ients that they know are positive f

or the HI V virus in p

rivate r ooms or only putting them with other similarly infected patients, and further, the policy

of the defendants is to not inform the roommates of such persons, which the defendants know have tested positive for HIV virus, of that fa ct. This policy deprives the no n-HIV in fected patie nts o f the d efenda nts o f maki ng a choice as to whether or not to [be] placed in that environment. These policies constitute outrageous conduct toward the pe rson or p ers ons sha rin g a r oom wit h so meo ne i nfe cte d wi th th e HIV virus when the fact is known to the hospital and not disclosed to the roommate. These policies further constitute I ntentional-3- Infliction of Emotional Distress upon the patients, and the spouses a nd family of the pa tients, who the hospi

tal caus es to live with and be roommates of patients, known to the hospital to be infected with HIV virus without informing them. The emotiona l distresssuffer

ed by patients a

nd their f amilies a s a direct a nd proximate

result of these pol icies is not only forese eable, but the ass ured con sequenc e of the p olicies. V. That on the 17th day of September, 1991, the plaintiff, Jerry Bain was admitted as an in-patient by the defendant, Dr. Way

ne Wells, into the New Beginnings Center, which is an alc ohol and drug rehabil itation ce nter on th e proper ty o f Univer sity Medical Center, in Lebanon, Te nnessee, and operated by

the University Medical Cente r and National Recovery

Centers of America, University

Medical Center and National Recovery Centers of America being opera ted by the defe

ndant, National Medical Enterprises, Inc ., for a course of treatment for an alcohol p roblem. The plaintiff was admitted to the aforesaid hospital or rehabilitation center in Le banon, Te

nnessee , and remained the re in tre atment un

til October 1, 1991, when he left treatment without completing the progra m. On Octo

ber 4, 19 91, the pla

intiff re turned to the said hospital or rehabilitation center to complete the progra m and remained there until October 8, 1991, then having completed the prog ram provided by the def

endants, he was discharged. VI. That during the pla

intiff's aforesaid hospitalization, the defendants, individually or throug h its or his agents and/or employees plac ed a roommate with the plaintiff, who they had been informed or knew, had tested positive for the HI V virus or they should have known wa s positive for the HIV virus without telling the plaintiff pursuant to the policy of the defendants. The plaintiff occupied the same room with this HI V infected person for approximately 8 da ys, shared ba

throom facilities with him an d on one oc casion us ed his ra zor to shav e with mistaking it for his own. VII . That by

the fac ts hereto fore se

t out the de

fendant s knowingly, maliciously

and willfully and/or negligently and recklessly e

xposed the plaintiff, Jerry Bain to an infectious disease of the HIV virus without informing the plaintiff, Jerry Bain of this risk. VII I. That these facts are compounded by the fact that the plaintiff , Jerry Bain ha d an open cut on his buttock at

the time and roommates in the

facility share to ilet fac ilities. IX. That the afore said actions of the defendants individually or through their agents and or employ ees constitutes a deviation from the standard of care in the community and as a direct and proximate result of that deviation, the plaintiffs have been damaged as here

tofore s et out. X. That for the foregoing r easons the plaintiff Jerry B ain has suffered great worr

y and emotional distress which wa s-4- reasonably

foreseeable to the defendants who ar e each in the business o f health

care, a s a direct and proxima te result of their actions a nd policie s hereto fore se

t out. The p laintiff

would assert that he has suffered monetary damages in being tested for the HI V virus, a nd in trea tment for the emotio nal distre ss caused by his e

xposure to this virus, in addition to the emotional distress itself suffered by the plaintiff and his wife all as a direct and proximate result of the policies and actions of the defendants, which are all health ca re providers heretofore set out. XI. That as a direct and proximate result of the aforealledged policies and actions of the defendants, the plaintiff and his wife fear they may be infected with the HI

V virus. XII . That as a

direct a nd proximate

result of the defe ndants' actions, policies a

nd omission s hereto fore se t out, the p laintiff

s' normal marital life has been compromised and each ma ke a claim for loss of co nsortium. The comp laint pra

ye d for com

pensator y a nd punitive

damage s.
In their answers, def

endants denied that they

endangered the patient, Ba in, or that they deviated from the acceptable standar d of care.
The corporate defendants moved to dismiss for failure to state a claim for which relief can be granted.
On July 13, 1993, the remaining (c orporate) defendants moved for summary judgment supporte d by

affida vit of Dr. William Scha

ffner, II that: In conju nctio n wit h thi s matt er, I have review ed Je rry Bain's deposition and a portion of his medical records at the Universi ty M edical Ce

nter con sisting o f the adm ission rec ords, the hi story and physical exam inati ons an d a derm atolo gy consulta tion. Ba sed on my

review o f these ma

terials a nd my educati on and expe

rience , Jerry

Bain did not suffe r exposure

to HIV and, a per son experiencing circumstances set out in the materials I had revie

wed would have no reasonable fear of contracting HI

V. I am f amiliar w ith numero

us studies of perso ns with AI DS, their living circumstances, and the health of per sons sharing their household. The only per sons in any of these studies who shared a household with an AI DS victim who became infected himself were either sex partners or offspring of the AIDS-5- victims. It is my opinion that one c ould not contract the AIDS virus by sharing

a toilet seat or disposable razor with a person in the circumstances set out in the plaintiff's deposition. It is further my

opinion that following an exposure to HIV, after three months of negative testing , that person would be reasonably

sure of not being infected with HI V. The technical panel of infections within hospitals of the American Hospital Association published recommendations entitled "Management of HI

V Infection in the Hospital," r evised in November, 1988. In rega

rds to hospital inpatients infected with HIV, the pane l recomme nded that a privat e room is u sually

not nece ssary

for patie nts with HIV infection. I

am familiar with the standard of care requir ed of hospitals such as the University Medica l Center in regards to the room placements of patients with HIV infections. That standard does not require that such patients be segreg ated unless the HIV infected patient has other infectio ns such asthose tra nsmitted by

the airb orne rou

te, is violent, or is so ill with AIDS that he is unable to control his body fluids. Therefore, it is my opinion that the Unive rsity Medical Center complied with the applicable standard of care by not segregating Jerry Bain' s roommate

by p lacing

him in a pri vate roo m.
In re sponse, th

e plaintif fs filed t he affi davit of th

e plaintif f, Jerry Bain, th at: A. I was admitted to New B eginnings Center which, to the best of my knowledg e, information and belief, is operated by National Recover y Ce nters of America n and Univ ersity Medical Center which are wholly -owned subsidiaries of National Medical Enterprises, I nc. B. That m

y a dmittance was for t he purpo se of hel

ping me with an alcohol problem and was for a 28 day course of treatme nt. C. That dur

ing the c ourse of

my tr eatment, the defe

ndants, their agents and employ

ees, placed with me, a roommate who was positive for HIV virus without informing me of that fact and I was informed, by

that person, my forme

r roommate, who is now deceased, that he was not to tell me either of the fa ct that he wa s infected with HI V virus. D. That du

ring the course o f my

treatme nt, the defendant s, their ag ents and e

mploy ees, nev er infor

med me of

the fac t that I should regard every

one whom I came in contact with as being infected with serious, life-threatening disorder s and to take appropriate measures not to use their instruments of personal hygie ne. E. That I am informed by the defendant's age

nts and employees, af

ter I discovered tha

t my roommate was positive for HI V, that the

defenda nts have a policy not to discriminate against people who are positive for HI V virus and to place th em i n ro om s wi th per son s wh o ar e no t p osi ti ve f or H IV without telling the non-infected person of the potential risk.-6- F. That there were no signs posted on the door s indicating that spec ial prec autions sh ould be ta ken in re gard to

my roommate. G. That one morning , while I was a re sident at t

his health care facility , I mistakenly used my roommate' s razor to shave with, which he had previously used that morning. When I discover ed my mistake, I

wasn't overly concer ned until I discovered that he was positive for HI V. H. That in

the norma

l course of shavin g, I

usually attempt to shave very

closely and norma

lly cut or scrape

myself sever

al times.

. . . . J. That after discovering the fact that my roommate was infected with the HIV virus, a nd knowing the fact that I had inadvertently used his ra

zor, I have been suffe

ring from emotional distress of knowing that I mig ht possibly be infected with this deadly disorder and tha t I might have, in turn, infecte d my wife and c

hild. K. That it is common knowledge that not all means of transmiss ion of HI

V virus ha

ve y et been d

iscover ed and tha

t it can take up to ten y ears from the time of contact with the virus until it ca n be dete cted in a

person' s sy stem. L. That I

have had several HI

V tests conducted on my pe rson which ha ve to date been ne gative , but in hav ing the t ests conducted on me, I have

incurred medical expense. M. That I

recent ly heard on t

he television abou

t an HI V case where the virus can [be] contracted through the use of a razor which was previously used by a person with HIV and this has ca us ed me fu rt he r c on ce rn an d w or ry. On June 6, 1994, the Trial Court overruled defendants' motion "insofar as it is based upon plaintiffs' lack of an exposure to the HI V."
On September 7, 1994, plaintiffs filed the affidavit of Way ne Winfree; Administrator of the Car thage G eneral Hospital t

hat: 2. That it is the standard of care at our hospital to place patients with life th

reaten ing, co ntagiou s disorde

rs in a pr ivate room or another room without another patient. HI V is not specific ally

defined in our poli cy

as one of these dis orders.-7- On September 14, 1994, the Trial Judge entered the following order: This cause having come to be heard on Septe mber 1, 1994 upon the motion of the defendant for summary judgment and the Court having considered the motion with the supporting affidavit of Dr. William Schaffner and the affidavit of Way ne Winfree and it appearing to the Court that the motion should be overruled, It is, hereby , ordered that the defendants' motion for summary judgment is overruled. On March 23, 1995, the Trial Court entered an "Agreed Order" g ranting a Rule 9 appeal f rom the or

der of Se ptember 13, 1994, f

or the fo llowing r

easons: The plaintiff was an inpatient in a alcohol treatment prog ram at the University Medica

l Center when he shared a room with a person suffering

from AI DS. The fa

ct that hisroommate suffer ed from AIDS was undi sclos ed to h im. T he pla inti ff's complaint arose from his alleged exposure to HI V as a result of his inadvertent use of his roommate's razor when they were sharing a room and bath facilities at University Medical Center. The sens itive natu

re of the subject ma

tter fro m which thi s suit arises could result in irreparable harm to the par ties and other persons if this action goes to trial. First, there could [be] publicity embarr assing t o the plai ntiff and

his family

as a res ult of his alle ged expo sure to the HI V virus. Second, the

re could be publicity embarr

assing to the family of

the now deceased roommate, due to his having suffered from AI DS. Third, there could be publicity harmful a nd embarrassing to the reputation of the hospital in the community due to the fact that it places persons k nown to the

hospital to

be suffe ring wit h AID S in rooms with persons uninfected with that disorder without in fo rm in g t he un in fe ct ed pa rt y. In the eve nt th e Cour t of Ap peals revers es thi s tri al cou rt's order de nying the d

efenda nt's motio n for summa

ry judgmen t, the potentially embarr

assing and negative publicity to the parties and other persons would have been unnec essary. Therefore, to prevent the potential of neg ative and embarrassing publicity

to the parties and other persons, the Court is of

the opinio n that an i nterloc utory appeal s hould lie regarding the Court' s denial of the defendants' motion for summary judgmen t. This action involves a developing and complex field of law with little precedent from the appellate courts of this state. Therefore, it is the opinion of the court that an interlocutory appeal which might result in a reversal of the court's denial of summary has a potential of preventing needless expensive and protracted litigation.-8- On appea l, defendants pre sent thre e issues, of which the first is: 1. Whether the record contains genuine issues of ma terial fact con cer ni ng w het her th e de fen dan ts ' po li cy of hou si ng H IV positive patients with non-HIV positive patients was consistent with standard medical practice.
The natu re of pr oof requ ired re garding a standard of m edical p ractice is outlined

in T.C.A. 29-26-115. In a malpractice action, the plaintiff has the burden of proving by competent evidence the recognized standard of acceptable professional pra ctice in the defendant's profession and speciality thereof and that the defendant acted with less than ordinary a

nd reasonable care in accor dance with such standard.
Where the alleged malpractice lies within the common knowledg e of a lay man, expert testimony is not required. Baldwin v. Knight, Tenn. 1978, 569 S.W.2d 450.
It can hardly

be said that the common knowledge of lay men includes the proper standard of care in respect to the assig nment to the same health care room of a person infected with HIV and a

person not so infected or the concealment from a pa tient the fact that his roommate is infected with HIV.
As above indicated, the defendants produced the testimony of a medical a uthority that the conduct of defendants conformed to the " applicable standard of care" by not segr egating Jerry Bain' s roommate by placing him in a private room." The plaintiffs responded with an affidavit of a hospital administrator of the standard of car e at his hospital. This does not identify a gene ral stand ard of c are whic

h would co ntradic t the testi mony of defe ndants' witness. Thus, the uncontradicted evidence in this record shows that def endants did not violate the recognized standard of acc eptable medical practice by placing a patient infected with HIV in the room with Mr. Bain.-9- Howeve r, the af fidavit of fered b y de

fendant s refer s only

to the pla cing of two patie nts in the same room; whereas the complaint also alleges tha t Mr. Bain was placed in a room with an HIV patient secre tly, that is, without disclosing to Mr. Bain that his roommate wa s infected by H

IV.
As to this second complaint, there is no evidence of standard of ca re except uncontradicted evidence that the defenda nts operate under certification to provide Medicar e and Medic aid benefits whic h obliga tes them to

observe 42 U.S.C.A . § 290-dd -3. Said st atute forbids th e disclos ure of me dical re cords of patients e

xcept unde

r circumstance s not shown in this record.
While the statute may excuse the failure to disclose the condition of a patient, it does not necessarily justify

placing the infected individual in a room without disclosing the infection to the roommate. If the disclosure cannot be lawfully

made, the placement of the patient with another patient may be wrongful. The record is silent on the issue of whe ther the recognized standard of acce ptable care permits the placing of a n HIV infected pa

tient in the room with a

n uninfected patie

nt without w arning

the uninf ected pa tient.
The first ground of recovery (placing the infected patient in the room with another patient) may be subject to a summary judgment under this record; but the second ground (concealment of infection accompanied by assignment to a room) is not subject to a summary judgment under this record.

The two a lleged wrongs(place

ment and c oncealm

ent) ar e so inextri cably interconnected that they

should be dealt with as a unit and not dismissed piecemeal. The distinction is better pointed out in a jury charg e.-10- Appellan ts' sec ond issue i s: 2. Whether the plaintiff's response to the motion for summary judgment demonstrates that he will be able to prove all the elementsof his outr

ageou s conduc t claim.
This issue

presuppo ses that, in respon se to the motion for su mmary judgmen t, plaintiffs were under a duty to demonstrate evidence to support the allegation of outra geous conduct.

A defen dant is not

entitled t o summary

judgmen t merely because the plain tiff fai led to support every e

lement of his case with evidence, but because plaintiff ha s failed to contradict evidence which, if uncontradicted, entitles defe ndant to judgment as a matter of law. Armes v. Hulett, Tenn. App. 1992, 843 S.W.2d 427.
In other words, a plaintiff ha s no obligation to prove his case on summary judgment. His oblig ation is on

ly to contrad ict evide nce off ered by defenda nt.
The first requisite of "outrageous c onduct" is that the conduct be wrongful, i.e. a violation o f some dut

y. C onduct mus t first be

wrongf ul befor e it can b e outrag eous.
Wrongful conduct may

or may not be outra

geous, but conduct may

not be outrageous unless it isfirst wro ngful.
In the present case , plaintiffs charge outrage ous conduct in two respects: (1) placing an HIV infecte d patient in the room with a noninfected patient, and (2) hiding from the noninfected patient the infection of his roommate.

Defend ants have

produce d evidenc e that pla cing the infecte d patient

in the roo m with an uninfected patient was not wrongful. Plaintiffs have of fered no competent contradiction of defendants' evidence. The refore, defendants are e

ntitled to a partial summary judgment-11-

dismissing plaintiffs' suit for outrageous conduct base d upon defendants wrongfully placing an infected patie

nt in the ro om with a no ninfect ed patie nt.
The situation is otherwise with the second charge of c oncealing the infection of the roommate. Defendants have offered no evidence that this was not wrongful and are therefore not entitled to summary judgment on this part of the c ase. In the prese nt state of the record, plaintiff is entitled to trial on the merits of the second allegation.

If su ch alleg ation re aches tr ial, the charge

of "outr ageou s conduc t" will pr

esent a materia l issue be cause it

appear s that plaintiff sust ained no p ecuniar

y da mage e xcept expen se of tests a nd no phy sical inju

ry or pain e xcept that w

hich was incident

to the test s. In

short, the predominant gravamen of the lawsuit is "e motional injury and suffering from outrageous conduct."

If c oncealm

ent of the infectio n is shown to

be wrongful, then

it will be in

order to consider whether it was "o utrage ous condu ct," sup

porting damage s for emo tional dist ress wi th ou t p hys ic al in

ju ry.
The Tennessee Supreme Court has recog nized the tort of outrageous conduct and has defined its two essential elements. Medlin v. Allied Inv. Co., 217 Tenn. 469, 479, 398 S.W.2d 270, 274 (1966). The first element is that the defendant's conduct be outra geous, i.e. , "not tolerat ed in civil ized soci ety." Id. The second element is that the plaintiff suffer "serious mental injury ." Note that it is not necessary for the plaintiff to show actual phy sical harm. Id.
Defendants' motion for summary judgment failed to assert that plaintiffs will be unable to show that Mr. Bain suffered sever e emotional distress or that Mr. Bain did not-12-

suffer severe emotional distress as a result of the inc ident. Because defendants did not provide uncontradicted evidence as to this issue, it should proceed to trial. Armes v. Hulett, Tenn. App. 1992, 843 S.W.2d 427, 429.

Defend ants' th

ird, and l ast issue i s: 3. Whether the plaintiff's response to the motion for summary judgment demonstrates that he will be able to prove that he was actually exposed to the human immunodeficiency virus during hi s h os pi ta li za ti on at th e f ac il it y.
Defend ants did no t contend that plain

tiffs needed to pro ve actua l phy sical ha

rm in order to establish neglig ent infliction of emotional dist ress. I nstead, d efenda nts corr ectly stated that plaintiffs only neede d to prove actual exposure. Carroll v. Sisters of Sa int Franci s Health Servs., Inc., Tenn. 1978, 868 S.W.2d 585, 594.
Wherein the plaintiff sued for negligent infliction of e motional distress based upon the maintenance of a container for disca rded hypoder

mic needles which plaintiff mistook for a paper towel container. I n attempting to secure a towel, plaintiff inserted her ha nd into the containe r and pri cked thr

ee of he r finge rs on nee dles. The

plaintiff admitted t

hat she c ould not prove that the needle that pricked her fing er was contaminated with HI V virus as feared by her. The

Supreme Court held that plaintiff could not recover for emotional distress from fear of HI V without presenting evidence that she was actually exposed to HI V.

The court's decision in Carroll was very narrow, but in reaching its conclusion, the court analyzed the pr

ogression of the law in Tennessee. Afte r discussing some recent opinions, the court noted that "[u]nder the older law, a plaintiff was required to show that he or she had sustained a distinct physic al injury before being allowed to recover for e motional or mental i njuries." Id. at 593. The court then went on to explain that the reason for requiring a phy sical injury was to objectify the inquiry, i.e., to ens ure th at the plain tiff's-13-

emotional injury was well-g rounded. Id. Addressing the current state of the law, the court pointed ou

t that the " phy sical inju

ry require ment has b een gr

adually weakened so that

a minimal p hysical injury will now s uffice." Id. In a precau tionary tone, the court we nt on to explain that "[t]his shift in the law . . . does not signal an abandonment of the objectivizing function served by

the physical injury

requirement, but is rather a product of the rea lization that the physical injury

requirement no longer properly serves that function in many modern actions for emotional damages."
Finally , the cour

t applied the above

law to the

facts. I t conclud ed that Carroll

was one of tho se "mode

rn actio ns" in wh

ich the ph ysi cal injur

y r equirem ent failed to serve

its function. Instead, the court e mployed an " actual exposure" requirement. As a result, the court de nied Carr oll's request for

damage s becaus e she cou ld not prov e that the

needles , which pricked her fingers, we re contaminated with HIV. Id. at 594. I n the pre sent cas e, in order f or the defendant s to preva il on summar

y ju dgment, they

must provid

e the cou rt with uncontradicted evidence that there wa s no actual exposure. That is, that no exposure occurred through contact with the ra zor or use of toilet facilities.
Under the rule of law already cited, in order to be entitled to a summary judgment on the gro und that Mr . Bain wa s not expose d to HI V virus, th

e defendants we

re oblig ated to show by uncontradicted and unequivocal evidence that he was not so exposed. The uncontradicted and unequivocal evidence is that he w as not exposed merely by the presence of the inf ected pa tient in hisroom.
However, the complaint, quoted above, stated that he used his roommate' s razor and used the same toilet with a cut on his buttock. This raises the issue of whether Mr. Bain wa s exposed to H

IV vi rus by use of the

razor or use of the

toilet. The defendants hav e failed to carry their burden of proving by uncontradicted and unequivocal evidence that Mr. B ain was not exposed to H

IV vi rus by use of the

razor or toilet fa cilities.-14- The dep osit ion o f defen dant's expe rt inc ludes the fo llow ing: Q. If a person wa s positive for HIV had used a r azor to shave with, that razor should be considered as containing the disorder should it not --

. . . . A. The -- Absent bleeding, the short answer is no. Q. If bleeding

is unknown? A. Well, if one -- I mean, if blee ding occurs y ou see blood on the razor. If there' s blood on the razor, regardless of its source, the razor is considered a -- I don't want to use the word contaminated, because razors are alwa ys contaminated. They' re never considered -- they 're never considered ster ile, but if a person shaves with a razor and doesn't c ut themselves and the razor doesn' t get co vered w ith blood, t here' s no hazar

d to the next pe

rson, re gardle ss of wha

t the firs t person' s status is, whether infecte d or not. I can't g et infected by

shaking your

hand, if you'

re infected. I mean, we 've es tablished

that that i s not the wa

y th is virus is transmitted. It is a difficult virus to transmit. You have to have blood to blood contact. So the simple use of a razor does not mean that virus is on the razor and capable of being transmitted to a subsequent user. There is uncontroverted evidence that, if ther e is no infected blood on the razor, or toilet, it cannot transmit HIV. However, the r ecord is silent as to whether there was blood on the razor or toilet when Mr. Bain used it. I n order to supply the uncontr adicted, unequivocal evidenc e that Mr. Bain wa s not exposed to H

IV by use of the

razor or toilet, the

defenda nts had the burden of proving that there wa s no blood of the roommate on the razor or toilet when Mr. Bain used them.
It may be that neither party

will be able to prove that there was blood on the razor or toilet. The owner of the razor will not be able to testify because he is dead. Further, plaintiffs admit that Mr. Bain does not remember whether there was blood on the razor. Plaintiff s state the following

in their br

ief: "T he reas on these f

acts ar e impossibl e to rec all is-15-

that the a ppellee did not bec ome anxiousabout it un til day s later, w

hen he dis covere d his roommate

was positi ve for HIV." Neverth eless, in a jury trial, it isthe role

of the jur y to
we ig h t he ev id en ce an d t o d ec id e w he th er th e p la in ti ff s h av e e st ab li sh ed ac tu al ex po su re by a preponderance of the evidence
.
Although Mr. Bain admitted that subsequent tests for HI V were negative, there

is no evidence that this fact establishes non-exposure.
In summary , this is a suit for negligence and outrag eous conduct based upon two alleged wrongful acts, (1) placing an infected patient in the room with Mr. B ain, and (2) hiding from Mr. Bain the fact that his roommate was infected.
The placing of the infected patient in the room ha s been shown to be not wrongful by uncontradicted and unequivocal evidence.
The placing of an infected patient without war ning the roommate may

be wrongful. The wrongful characte

r of hiding of the infected condition of the roommate and the lack of exposure to the virus HIV by use of a razor have not been neg atived by uncontra dicted and unequivocal evidence, and therefore remain as issues for future resolution.
As heretofore stated, the two grounds of c omplaint are too interconnected to be separated by

summary judgme

nt, and their consideration will be most efficiently guided by jury instruction.
With the reservations stated, the judgment of the Trial Court overruling the motion of defendants for summary

judgment is affirmed. Costs of this appeal are taxed aga inst the appella nts. The c ause is r

emanded for fur ther pro ceeding s.-16- Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE