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1-01-0610                                                                                                                                                           FirstDivision

May 28, 2002

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Plaintiff Alicia Pettigrew, a nurse at Michael Reese Hospital, filed a two count complaintagainst defendant Dr. Allen Putterman. In the first count, plaintiff alleged that she suffered alaceration to her hand when defendant handed her a used surgical scissors in a negligent mannerduring a surgical procedure. In the second count, plaintiff additionally alleged that she had sufferedemotional distress arising from fear of contracting acquired immune deficiency syndrome (AIDS)as a result of defendant's negligence. Defendant, seeking summary judgment, argued that the "actualexposure" rule announced in Majca v. Beekil, 183 Ill. 2d 407 (1998), bars recovery because plaintiffcould not prove actual exposure to the human immunodeficiency virus (HIV), the virus which causesAIDS. The trial court granted summary judgment. Plaintiff appealed. For the following reasons,we reverse and remand.

FACTS Defendant, an ophthalmic plastic surgeon, performed surgery on the eyelid of an unidentified⁽¹⁾patient on November 1, 1994. Plaintiff assisted in that surgery as a scrub nurse. According toplaintiff's first amended complaint, the surgical patient was "suffering from the AIDS infection" atthe time of the surgery. After using a surgical scissors to cut the patient's eyelid, defendant allegedlydropped the scissors onto plaintiff's hand while attempting to hand them to her. The scissorspunctured plaintiff's glove and the skin of her hand. In both counts of her complaint, plaintiff allegedthat defendant was negligent in that he:

"(a) Failed to observe the field or area where the scissors werebeing placed before releasing said instrument;

(b) Failed to place the scissors into the plaintiff's hand beforereleasing said instrument; and/or

(c) Failed to wait for the plaintiff to grip the scissors beforereleasing said instrument."

In count I of her complaint, plaintiff alleged that, as a result of defendant's negligence,plaintiff suffered "injuries including but not limited to the laceration to her hand, lost wages, medicalexpenses, pain and suffering, [and] physical and emotional trauma." In count II of her complaint,plaintiff additionally alleged that, as a result of defendant's negligence, plaintiff "suffered emotionaldistress from having been exposed to the AIDS virus."

In his original answer to plaintiff's first amended complaint defendant admitted that "heperformed a surgical procedure with the assistance of the plaintiff *** on a patient who subsequentlywas determined to be HIV positive." Defendant later moved for leave to amend his answer, allegingthat through discovery he had learned both that "the surgical patient was never diagnosed as beingHIV positive at the time of the occurrence" and further that there was no evidence of HIV positivetest results sufficient to establish a diagnosis of HIV infection as defined by section 697.100 of theIllinois Administrative Code (77 Ill. Adm. Code