Colonoscopy Patient Who Contracts Hepatitis C Entitled to Jury Trial on Fault and Punitive Damages
On June 15, 2016 a New York Appellate Court agreed that a jury trial must be held to determine whether a gastroenterologist caused the spread of hepatitis C from one known infected patient undergoing a colonoscopy to the next - who had no history of the virus. Plaintiff's expert: "demonstrated that the transmission of hepatitis C from one patient to another does not occur in the absence of negligence, as the hepatitis C virus is a blood-borne pathogen that can only be transmitted when the blood of one patient is put into the body of the other, and that the injured plaintiff did not contribute to the transmission, as she was under anesthesia at the time of the procedure." (Doctrine of res ipsa loquitur found applicable.)
The NYC Department of Health discovered that the patient upon whom the defendant gastroenterologist "performed a colonoscopy immediately before the injured plaintiff on the same day was a known hepatitis C patient." Prior to the day of the colonoscopy the injured plaintiff showed no signs or symptoms of hepatitis C exposure. However, the plaintiff was diagnosed with hepatitis C six weeks after the colonoscopy which is the usual incubation period for hepatitis C. The Court stated that all the plaintiff needed to prove to a jury was "that the likelihood of other possible causes of the injury (contracting the virus) be so reduced that the greater probability lies at the defendant's door". Plaintiff's case can be proved solely with circumstantial as opposed to direct evidence. Moreover, in response to the gastroenterologist's argument that plaintiff's claim for punitive damages in addition to compensatory damages, should be dismissed, the Court held: "plaintiff's allegations, if established, could provide a basis for an award of punitive damages." Gonzalez v Arya, Appellate Division, Second Department.
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