B.N. v. K.K

Majority - Adkins, Judge

Yes, Maryland recognizes causes of action for negligence, intentional infliction of emotional distress, and fraud resulting from the sexual transmission of a dangerous, contagious, and incurable disease like genital herpes, subject to a proper factual showing in each case. Regarding negligence, the court applied the traditional elements of duty, breach, causation, and damages. It found that a person who knows they have a highly infectious disease has a duty to take reasonable precautions—either by warning others or by avoiding contact—to prevent its transmission. Dr. K.'s alleged conduct of knowing he had active genital herpes, a highly contagious and sexually transmitted disease, and engaging in sexual intercourse with Ms. N. without informing her, would allow a fact-finder to conclude that harm to Ms. N. was reasonably foreseeable. This establishes a breach of duty. Ms. N.'s alleged contraction of a serious, painful, and incurable disease as a direct result constitutes actual injury proximately caused by the breach, thus stating a cognizable cause of action. The court cited precedents like Moran v. Fabergé on foreseeability and Hendricks v. Butcher on the duty of an infected person. For intentional infliction of emotional distress, the court applied the four elements established in Harris v. Jones: (1) intentional or reckless conduct; (2) extreme and outrageous conduct; (3) a causal connection; and (4) severe emotional distress. Dr. K.'s alleged actions, knowing the nature of genital herpes (painful, incurable, associated with cervical cancer, risks in childbirth, and significant psychological trauma), and engaging in sexual intercourse while the disease was active, meet the criteria for intentional or reckless conduct. Such conduct, in light of the severe consequences of genital herpes, is deemed extreme and outrageous, not mere trivialities. The causal connection between the transmission and the emotional distress is apparent. While the severity of emotional distress must be proven, the outrageousness of the conduct itself can provide evidence of severity, and other courts have found similar facts sufficient. The court referenced Kathleen K. v. Robert B. and Long v. Adams. Concerning fraud (or intentional misrepresentation), the court applied the elements of a false representation, knowledge of falsity, intent to defraud, justifiable reliance, and resulting damage. Although fraud is often applied in business contexts, the court emphasized that a business setting and pecuniary loss are not always required. Dr. K.'s nondisclosure of his genital herpes acted as an implicit misrepresentation of good health. The critical question was whether Dr. K. had a duty to disclose. The court concluded that while a formal confidential relationship might impose such a duty, it is not essential here. Dr. K. had a general tort duty to disclose his condition before intercourse because the relationship made him aware that nondisclosure was highly likely to produce severe harm to Ms. N. Ms. N.'s alleged reasonable reliance on this implicit representation, her assertion that she would not have engaged in sex if she knew the truth, and the direct damages suffered, collectively establish a cause of action for fraud. The court cited Suburban Mgmt. v. Johnson, Restatement (Second) of Torts § 557A, and similar cases like Kathleen K. v. Robert B. and Maharam v. Maharam.