Appeal from Superior Court of Snohomish County. Docket No: 89-2-05411-4. Date filed: 05/01/95. Judge signing: Hon. Joseph Thibodeau.
Authored by Faye C. Kennedy. Concurring: William W. Baker, Susan R. Agid.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- While working as a corrections officer at the Washington State Reformatory, Michael Caspary was bitten by an HIV-infected inmate. News of the biting incident and of the inmate's subsequent HIV-positive test results became widely known throughout the prison and in the community. Caspary was provided with benefits for physical and psychological injuries under the Industrial Insurance Act. Caspary subsequently sued the State of Washington, the Department of Corrections and the prison hospital administrator for the torts of outrage and invasion of privacy/false light, for breach of a duty to discover and warn of the inmate's HIV status, and for violation of the physician-patient privilege.
Caspary's claims were dismissed on summary judgment, and he appeals, contending that the court erred in not granting his motion to continue the summary judgment hearing to allow him to obtain the deposition of a material witness, and in dismissing his claims. Finding no error, we affirm.
On November 28, 1987, Michael Caspary was bitten by inmate J.M. while working as a correctional officer on hallway duty at the Washington State Reformatory in Monroe, Washington. Several days later, J.M. consented to a test for HIV antibodies. When the test results came back positive, J.M. gave prison medical personnel permission to inform Caspary of the test results.
On December 8, 1987, Reformatory Superintendent Kenneth Ducharmes met with prison hospital administrator R.L. Russnogle, Physician's Assistant (P.A.) Roger Welch and prison staff physician Dr. Colin Romero to discuss whether to release J.M.'s test results to Caspary. Russnogle advised against advising Caspary of the test results, in that he believed the possibility of transmission of the virus via a human bite was extremely remote and he did not wish to frighten Caspary needlessly. Dr. Romero and P.A. Welch believed, on clinical grounds, that Caspary had a right to know the test results. Although it is unclear from the record whether the subject was discussed at the meeting, the record does reflect that by the time of the meeting, at least two corrections officers who worked at the prison were already aware of J.M.'s test results, and had so advised P.A. Welch as Welch came to work on the morning of December 8. Thus, although Caspary was as yet unaware of J.M.'s test results, other corrections officers were aware.
With the authorization of Superintendent Ducharmes, P.A. Roger Welch called the Caspary home on December 8 to inform Caspary of J.M.'s test results. Caspary was not at home. Caspary's wife answered the phone. She immediately suspected the purpose of the call, stated that she knew about the testing, and asked Welch if he had the test results. He stated that he did and that he needed to talk with Mr. Caspary. With this, Mrs. Caspary immediately concluded that the test results were positive, and so stated.
Welch told her, "'We can't tell until all the tests are in, but I need to talk to your husband.'" Clerk's Papers at 29. Mrs. Caspary became very upset. Welch tried to reassure her by explaining that one test does not necessarily confirm the presence of the disease.
A short while later, Caspary returned Welch's call, and Welch told Caspary the test results. According to Caspary, Welch indicated that he had not intended to disclose the test results to Mrs. Caspary, and explained that he had called rather than waiting until Caspary came in for work the following week because Welch had already been approached that morning by two corrections officers who were aware of J.M.'s test results.
Welch wanted Caspary to hear the test results from him, rather than from corrections personnel or others at the prison.
When J.M. bit Caspary, four other corrections officers witnessed the event, and an incident report was filed. Both Caspary and J.M. were treated for injuries received in the altercation by prison medical personnel at the prison infirmary.
By the time J.M.'s HIV test results were in, the fact that J.M. had bitten Caspary had become common knowledge at the prison. After J.M.'s test results were in, news that he was HIV-positive spread like wildfire throughout the prison, and from there to the community at large. By the terms of a written prison policy dated August 11, 1987, all staff in contact with any inmate reasonably suspected to have a contagious disease were entitled to notification within 4 hours of discovery of the risk.
Such notice was required to describe equipment and procedures necessary for dealing with such inmate.
Over the next several months, numerous inmates repeatedly and persistently harassed Caspary, claiming that he had AIDS and that he was going to die. Several of Caspary's fellow corrections officers commented to Caspary regarding the possibility that he had AIDS; one such officer shied away from Caspary's blood when Caspary cut his hand on a metal rail at the prison.
Newspaper stories appeared describing state prison guards' attempts to have an AIDS testing policy implemented at all state prisons. One story described an incident at the Monroe Reformatory in which an inmate bit a guard on November 28, 1987; neither Caspary nor J.M. was named in the article. In January 1988, Superintendent Ducharmes asked Caspary if he were willing to be interviewed by a television station regarding the biting incident and J.M.'s HIV-status. Caspary declined to be interviewed.
Friends and neighbors of the Casparys shunned them. The wife of a corrections officer called Mrs. Caspary and warned her to keep Mr. Caspary's dishes and laundry separate from that of the rest of the family.
According to Caspary, Superintendent Ducharmes called Caspary into his office in January 1988, and told him that a rumor was going around in Olympia that Caspary used to have sex with Mrs. Caspary three or four times a week, but now only once a month. Caspary told Ducharmes that if he wanted to know the truth he and his wife had only had relations twice since J.M. bit him.
During a prison training session regarding AIDS, which Caspary attended, another corrections officer asked the trainer whether Caspary would have to be tested for ten years, to be sure that he had not contracted HIV; according to Caspary, the trainer answered in the affirmative. Caspary had not given permission for his health issues to be discussed publicly.
Mrs. Caspary testified at her deposition that after the bite, Mr. Caspary had assured her that everything was okay, in order to persuade her to have unprotected sexual relations; when she found out that J.M. had tested positive, she felt betrayed by her husband. The stability of the marriage deteriorated significantly, as a result.
In an effort to quell the harassment and hostility of inmates, and the fears of his co-workers and friends and neighbors, Caspary broadly disseminated the fact that his own post-bite HIV test results were negative.
Caspary received Industrial Insurance Act benefits for his physical and psychological injuries. Caspary's treating psychologist, Dr. Robinson, wrote to Superintendent Ducharmes and to Valerie Grimm, a claims handler for the Department of Labor and Industries, explaining that she was treating Caspary for the emotional strain of dealing with discrimination and hostility from inmates and co-workers as a consequence of mass hysteria, as well as for the fear and uncertainty as to his health. Dr. Robinson explained that the way that Mrs. Caspary had received the news of the test results had caused considerable stress in the marriage, and that the fact that inmates and co-workers learned of J.M.'s test results before Caspary was told was a stress-causing factor in and of itself.
In September of 1989, Caspary sued the State of Washington, the Department of Corrections and R. L. Russnogle for the torts of outrage and invasion of privacy/false light, for breach of a duty to test J.M. for the HIV virus and to warn of his condition before the bite occurred, and for breach of the physician-patient privilege. Mrs. Caspary sued for loss of consortium. *fn1 In the complaint, Caspary alleged that Russnogle, who was responsible for the confidentiality of prison health records, told staff members of the institution that J.M. had tested positive, and that Russnogle repeated this information to members of the community at large, thus invading Caspary's privacy and placing him in a false light. The complaint also alleged that because J.M. was in prison for a drug offense, his risk of being HIV-positive was high, so that he should have been removed from the general prison population or tested for AIDS before he bit Caspary. Caspary also alleged that the telephone call to his wife, as well as the broad dissemination of J.M.'s test results constituted the tort of outrage.
Respondents moved for summary judgment in February 1995, arguing that the Industrial Insurance Act provided the exclusive remedy for Caspary's claims of workplace injury, and that Caspary's proof fell short of the level required to establish his claims, in any event. Caspary moved to continue the summary judgment hearing for ninety days, claiming that a material witness, one Joyce Dever who had been a nurse at the reformatory during the relevant time, could establish that Mr. Russnogle wrongfully accused her of leaking the results of J.M.'s HIV testing. After numerous unsuccessful attempts to locate Dever by telephone and by mail, counsel for Caspary learned that Dever was on a round-the-world cruise on a privately-owned sailboat, and that she had mail forwarded to the boat only twice or three times a year.
The court granted the motion for summary judgment, and denied the motion for continuance, stating, "Plaintiffs may move to vacate the court's order if they can take the deposition of Joyce Dever within six-months of this order." Clerk's Papers at 6-7.
Caspary immediately moved for reconsideration on grounds of CR 59, newly discovered evidence. Caspary attached P.A. Dale Cooper's declaration to the motion for reconsideration, but neither the motion for reconsideration nor the declaration itself explained why Cooper's declaration had been previously unavailable. The court denied the motion to reconsider.
This timely appeal followed.