Christus Health/St. Joseph Hospital v. Angela Price ( 2007 )

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Opinion issued May 24, 2007



In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00210-CV

CHRISTUS HEALTH/ST. JOSEPH HOSPITAL, Appellant

V.

ANGELA PRICE, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-121459

MEMORANDUM OPINION ON REHEARING

We issued an opinion in this case on February 1, 2007. Appellant, Christus Health/St. Joseph Hospital moved for a rehearing.⁽¹⁾ We grant rehearing, withdraw our opinion and vacate our judgment of February 1, 2007, and issue this opinion in its stead.

Appellant, Christus Health/St. Joseph Hospital, appeals a judgment in favor of appellee, Angela Price, that was entered in accordance with the jury's verdict. The hospital sued Price to attempt to reverse a determination by the Texas Workers' Compensation Commission (TWCC), which had found that Price sustained a compensable injury in the course and scope of her employment with the hospital. The sole issue submitted to the jury was whether Price had received a compensable injury. The jury agreed with the determination by the TWCC. The trial court rendered judgment that the hospital take nothing in its suit against Price and awarded Price her attorney's fees and costs for trial and appellate attorney's fees in the event of an unsuccessful appeal by the hospital. In three issues, the hospital contends that (1) the trial court erred by excluding medical records obtained by a deposition on written questions, (2) the trial court erred by allowing Price's expert witness to testify, and (3) the evidence was legally and factually insufficient to support the jury's verdict that Price sustained a compensable injury. We conclude that the hospital failed to preserve for appeal its challenges to the legal and factual sufficiency of the evidence. We also conclude that the trial court did not err by allowing Price's expert to testify. We further conclude that, assuming the trial court erred by excluding the deposition on written questions, the error was harmless. We affirm the judgment of the trial court.

Background

On June 30, 1994, Price was working as a certified nursing assistant for the hospital. While attempting to draw blood from a patient with human immunodeficiency virus (HIV) who had developed Acquired Immune Deficiency Syndrome (AIDS), Price was stuck in her finger by a needle she had used on the patient. Price immediately reported the needle stick to her supervisors and went to the hospital's emergency room. Price tested negative for HIV on the date of the incident. In accordance with the hospital's protocol after an employee was exposed to HIV, Price was tested several times over the following months. Price tested negative for HIV in August 1994, which was 30 days after she was stuck by the needle, December 1994, which was 6 months after she was stuck, and April 1995, which was 10 months after she was stuck. According to the hospital, 17 months after Price was stuck, she again tested negative for HIV.

In December 1998, over four years after getting stuck by the needle, as part of a physical examination while applying for life insurance, Price tested positive for HIV. Price filed a claim for worker's compensation benefits, alleging that she contracted HIV from the needle stick. The hospital denied her claim. After a contested case hearing before the TWCC, the hearing officer found that the needle stick was a compensable injury that Price incurred on June 30, 1994, in the course and scope of her employment for the hospital. The hospital appealed the hearing officer's decision to an appellate panel of the TWCC, which affirmed the decision of the hearing officer. To challenge the TWCC's determination that the hospital was liable for Price's injury, the hospital filed this suit, seeking judicial review of the TWCC's determination.

At trial, Elaine Whittingon, a nurse employed by the hospital, testified that according to the hospital's records, Price was stuck by a needle that had been used on a patient infected with HIV. Price also described how she was stuck by the needle. Price further testified that, after the HIV tests performed by the hospital, she was not tested again until the December 1998 test for life insurance. Price specifically denied being tested for HIV by Dr. Meredith in November 1995. The hospital offered into evidence the deposition on written questions propounded to Dr. Meredith on various grounds, including to impeach the testimony of Price, but Price objected to the medical records on the grounds that they were business records that had not been on file with the court for more than 14 days before trial. The trial court refused to admit the evidence. The excluded records indicate that Price tested negative for HIV at the test taken 17 months after she was stuck by the needle.

Three medical experts testified at trial. Dr. Seibert, an infectious disease physician employed by the hospital, and Dr. Septimus, the medical director of the infectious disease and employee health departments for Memorial Hermann Healthcare Systems, testified as experts for the hospital. Dr. Seibert testified that .003% of healthcare workers that "get a needle stick from an HIV positive patient get HIV." He explained that out of this .003 that actually get HIV, "in excess of 99%" of them test positive to the ELISA test within six months."⁽²⁾ Dr. Septimus testified similarly that "if you look at medical literature and the tracking that the Centers for Disease Control does, virtually all employees that have had transmissions of HIV from needle sticks will develop antibodies by six month[s]." Dr. Septimus said that the negative six month test "virtually excluded the possibility" that Price got HIV from the needle stick, "except for some rare exceptions."

In addition to the negative six month test for HIV, Price also tested negative for HIV ten months after she was stuck by the needle. Drs. Seibert and Septimus testified that the ten month test increased their level of confidence to above 99% that the needle stick at the hospital did not cause Price's HIV. Dr. Septimus testified that the additional negative result at ten months, following the negative HIV test at six months, "raises the confidence up to ninety-nine plus percent" that the needle stick was not the cause of the HIV.

The jury also heard Drs. Seibert and Septimus testify hypothetically that if someone who was stuck by a needle that was used on an HIV infected patient, and that person tested negative for HIV at six months, at 10 months, and at 17 months, the results from the 17 months test would "add additional evidence" that the person was not infected by the needle. Dr. Seibert said that he has never seen a single reported case in medical science of a person who tested negative at 17 months and then got HIV.

Price's treating physician, Dr. Salvato, also testified. Dr. Salvato is board certified in internal medicine and specializes in treating patients with HIV and AIDS. She is a member of the American Academy of HIV Specialists. Dr. Salvato explained that one measure of progression of HIV and AIDS is the patient's T-cell count. In the "great majority" of patients, the T-cell count declines at a certain rate. Dr. Salvato testified that Price's T-cell count progression was consistent with her contracting HIV from the 1994 needle stick. Additionally, in contradiction of the opinions of Dr. Seibert and Dr. Septimus, Dr. Salvato testified that reliable medical evidence exists that a person can be infected with HIV and not test positive for it for extended periods of time. In particular, Dr. Salvato referred to her own experience and observations, a New England Journal of Medicine article, and information from the International Conference on AIDS. Dr. Salvato stated that, in reasonable medical probability, Price contracted HIV from the needle stick in 1994.

Sufficiency of the Evidence

In its third issue, the hospital contends that the evidence is legally and factually insufficient to support the jury's verdict that the needle stick was a compensable injury. Specifically, the hospital contends that "Dr. Salvato's testimony does not meet the requirements for expert testimony and is no evidence and/or insufficient evidence to support" the jury's verdict. Because this was an appeal from a TWCC determination, the hospital bore the burden of proving, by a preponderance of the evidence, that Price did not receive a compensable injury.⁽³⁾ See Tex. Lab. Code Ann. §§ 410.301(a), 410.303 (Vernon 2006).

As a preliminary matter, we review the record to determine whether the hospital preserved error. To preserve for appeal a complaint of legal insufficiency of the evidence, a party must have specifically raised its complaint in (1) a motion for instructed verdict, (2) an objection to the submission of a jury question, (3) a motion for judgment notwithstanding the verdict, (4) a motion to disregard the jury's answer to a vital fact question, or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). Here, the hospital did not move for an instructed verdict. The hospital did not object to the submission of a jury question.⁽⁴⁾ The hospital did not move for judgment notwithstanding the verdict or to have the trial court disregard the jury's answer to a vital fact question. The hospital did move for a new trial. However, the motion for new trial does not complain about the legal sufficiency of the evidence to support the jury's verdict. Accordingly, we conclude that the hospital has not preserved the issue of the legal sufficiency of the evidence.

With respect to the factual-sufficiency complaint, Rule 324 of the Texas Rules of Civil Procedure, "Prerequisites of Appeal," provides,

(a) Motion for New Trial Not Required. A point in a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or a nonjury case, except as provided in subdivision (b).

(b) Motion for New Trial Required. A point in a motion for new trial is a prerequisite to the following complaints on appeal:

. . .

(2) A complaint of factual insufficiency of the evidence to support a jury finding;

. . . .

Tex. R. Civ. P. 324. The hospital's motion for new trial did not raise the issue of factual insufficiency of the evidence. Accordingly, we conclude that the hospital's factual-sufficiency complaint has not been preserved. See Marshall, 95 S.W.3d at 411-12.

We overrule the hospital's third issue.

Admission of Expert Opinion Testimony

In its second issue, the hospital contends that the trial court erred by allowing Price's expert, Dr. Salvato, to offer her opinion of causation to the jury. Specifically, the hospital asserts that Dr. Salvato's opinion was unreliable because

(1) Dr. Salvato's opinion that [Price] and her pattern of HIV illness matched a health care worker who had gotten the virus from a needle stick as reported in a Center for Disease Control (CDR) [sic] article was erroneous; (2) the article from the New England Journal of Medicine, Defendant's Exhibit 3, which Dr. Salvato relied on in basing her opinion that the June 30, 1994 needle stick was the cause of [Price's] HIV status was based on highly variable T-cell progression rates; (3) Dr. Salvato opined in prior affidavits that it was only possible that [Price] had been affected by the 1994 needle stick; and (4) Dr. Salvato exclusively relied upon [Price's] subjective complaints in forming her opinion on causation.

Price responds that the hospital's challenges concern "the unreliability of Dr. Salvato's conclusions," and not "the underlying methodology on which Dr. Salvato based her conclusions."

The trial court has broad discretion in determining whether an expert's testimony is reliable and admissible.⁽⁵⁾ Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id. If expert testimony is not reliable, it is not admissible. Brookshire Bros. v. Smith, 176 S.W.3d 30, 36 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712-13 (Tex. 1997) and Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 610 (Tex. App.--Houston [1st Dist.] 2002, pet. denied)). To determine reliability, the court may consider the following non-exclusive factors: (1) the extent to which the expert's theory has been or can be tested, (2) the extent to which the technique relies upon the expert's own subjective interpretation, (3) whether the expert's theory has been subjected to peer review and publication, (4) the potential rate of error of the theory, (5) whether the expert's theory or technique has been generally accepted as valid by the relevant scientific community, and (6) the non-judicial uses that have been made of the expert's theory or technique. Keo, 76 S.W.3d at 734 (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998)). "The trial court is not to determine whether the expert's conclusions are correct, but only whether the analysis used to reach them is reliable." Id. (citing Gammill, 972 S.W.2d at 728). If an expert's opinion is shaky or is based on a weak factual foundation, this does not necessarily render the opinion inadmissible because cross-examination is "the traditional and appropriate means of attacking shaky but admissible evidence." Gammill, 972 S.W.2d at 728 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 2798 (1993)); see also Keo, 76 S.W.3d at 734-35 (stating that alleged unreliability of doctor's expert opinion because it was based on self-serving statements of plaintiff went "to the weight, rather than the admissibility, of the evidence").

Dr. Salvato opined that, in reasonable medical probability, Price was infected with HIV by the needle stick in 1994. Dr. Salvato's primary practice is the treatment of patients with HIV and AIDS. Dr. Salvato testified that she was Price's primary care physician and had been for six years. Dr. Salvato testified that she based her opinion on the medical history Price gave to her in the course of their six-year doctor-patient relationship; the progression of Price's T-cell count; medical articles regarding the progression of HIV and AIDS, including the period of time for which persons can be infected before seroconversion; and her own experience and education regarding HIV infection.

The hospital contends that Dr. Salvato's reliance on a New England Journal of Medicine article from 1989 shows that her testimony that a person may be infected and remain seronegative for long periods of time is unreliable. The article describes 31 patients who were infected with HIV. However, 27 of the 31 patients remained seronegative for up to 36 months. The hospital contends that because the study was based on homosexual men, it is distinguishable from Price's case. The hospital also points out that Dr. Salvato admitted that this study did not disturb conventional thinking that 95% of persons infected with HIV test positive on an antibody test within six months. However, the hospital does not explain the significance of the gender or sexual orientation of an HIV positive patient. Dr. Salvato testified, "It doesn't matter how you get the virus, the virus is the same. . . . So if she got the virus by needle stick or she got it by blood transfusion or IV drug use, the AIDS virus is the AIDS virus, we can't say that it's going to progress differently in her than a homosexual male." We cannot conclude that the trial court abused its discretion by admitting the testimony of Dr. Salvato, a medical doctor with extensive experience treating patients with HIV, including this patient, and whose opinion was supported by peer-reviewed medical literature.

Even if the trial court abused its discretion in admitting Dr. Salvato's testimony, we note that any purported error must be harmful--here, that admitting Dr. Salvato's testimony "probably did cause, 'rendition of an improper judgment.'" Benavides v. Cushman, Inc., 189 S.W.3d 875, 79 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). The hospital contends that the error was harmful because "[t]here was no other evidence [Price] relied upon in proving causation" and "the remaining competent evidence was insufficient to support the judgment."

Even without Dr. Salvato's testimony, we conclude that the remaining testimony is sufficient to support the jury's verdict. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) (concluding that error in admitting expert testimony was harmless because other testimony was sufficient to support jury's verdict). The jury may accept or reject the testimony of any witness, including an expert's opinion testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005); see also Bruce, 998 S.W.2d at 620 ("'Jurors realize that they are the final triers to decide the issues. They may accept or reject an expert's view.'") (quoting Louder v. De Leon, 754 S.W.2d 148, 149 (Tex. 1988)).

First, in this suit seeking to reverse a TWCC decision in Price's favor, the burden was on the hospital to persuade the jury that the needle stick did not cause Price's HIV infection, not on Price to establish that it did. See Tex. Lab. Code Ann. § 410.303. Although Dr. Seibert opined that Price did not contract HIV from the needle stick, he nonetheless testified that seroconversion nine months after infection was possible, but "very rare." Further, Dr. Seibert and Dr. Septimus testified regarding the most common methods of HIV infection. They stated that the most common methods of transmission for HIV are (1) mother to fetus; (2) sexual transmission (the highest risk in this category is male-to-male sexual activity); and (3) blood-borne transmission (which includes needle sticks and IV drug use). It is undisputed that Price's infection was not a result of mother-to-fetus transmission or male-to-male sexual transmission. Price testified that she was not an IV drug user and that she had not been exposed to sexual transmission of HIV. She also stated that her only exposure to HIV infection was the needle stick in 1994.

The hospital had the burden to prove by a preponderance of the evidence that Price was not infected with HIV by the 1994 needle stick. The jurors could choose to believe Price's testimony and reject in part the testimony from the hospital's experts. Further, the record contains no evidence that anything other than the needle stick caused Price's HIV, a method of transmission that the hospital's experts acknowledged as a common method of transmission of the virus. Accordingly, we conclude that the hospital has not shown that it was harmed by the admission of Dr. Salvato's testimony. See Bruce, 998 S.W.2d at 620.

We overrule the hospital's second issue.

Exclusion of Medical Records

In its first issue, the hospital asserts that the trial court erred by excluding medical records obtained by a deposition on written questions of Dr. Meredith, which purportedly show that in November 1995, approximately 17 months after the needle stick, an HIV screening performed on Price was negative. On appeal, the hospital observes that the trial court erred because the 14-day filing requirement applies only to affidavits from a custodian of the records, not to records obtained through a deposition on written questions. The hospital further asserts that the exclusion of these records was harmful error because the doctors who testified at trial stated that a negative HIV test performed 17 months after exposure would raise their confidence in concluding that the exposure did not result in the person contracting HIV and because "no other evidence adduced at trial . . . reflected a negative HIV test performed seventeen months post needle stick." The hospital also contends that the exclusion was harmful because the jury inquired about the excluded medical records. Price responds that the error, if any, was harmless because the evidence was cumulative and not controlling on a material issue dispositive of the case.

"The admission and exclusion of evidence is committed to the trial court's sound discretion." Benavides, 189 S.W.3d at 878-79 (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). "To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause, and probably did cause, 'rendition of an improper judgment.'" Benavides, 189 S.W.3d at 879 (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning, 972 S.W.2d at 43). In conducting this harm analysis, we review the entire record. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Alvarado, 897 S.W.2d at 754; Benavides, 189 S.W.3d at 879. Evidentiary rulings do not usually cause reversible error unless the appellant can demonstrate that the judgment turns on the particular evidence that was admitted or excluded. Able, 35 S.W.3d at 617; Alvarado, 897 S.W.2d at 753-54; Benavides, 189 S.W.3d at 879. Reversal is required if the erroneously excluded evidence "is both controlling on a material issue and not cumulative." Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994); see also Benavides, 189 S.W.3d at 880 (holding that there was no harm in excluding expert's testimony regarding incidents similar to incident that injured plaintiff because jury heard evidence concerning other incidents from other sources).

Assuming the trial court erred by excluding the medical records, the error was not harmful because (1) the jury heard testimony that indicated that Price had tested negative for HIV at 17 months and (2) in view of the hospital's experts, a negative HIV result at 17 months did not significantly alter their opinion that Price did not contract HIV due to the needle stick. Rather, at most, it affected the doctors' testimony by less than one percent, from a confidence level in their opinion of "over 99%" to a confidence level of "99.9%."

Dr. Seibert testified that the HIV screening test performed on Price 17 months after the needle stick was negative.⁽⁶⁾ When this testimony was admitted, the trial court stated "Well, it's a document that has not been admitted into evidence, so its not something he can testify to," and told the hospital's counsel, "You're going to have to get this in, in accordance with the rules of evidence." The exclusion of the medical records, however, did not cause the hospital's experts to be unable to give an opinion about the consequences of a negative HIV test done 17 months after the needle stick or change the experts' opinions based on the 10-month negative test, which had been admitted into evidence.⁽⁷⁾ Further, the exclusion of the records did not affect the hospital's ability to present its theory at trial. For example, the hospital presented the theory during voir dire.⁽⁸⁾ The hospital also referred to the 17-month test in closing argument.⁽⁹⁾

The hospital contends that the harm caused by the exclusion of the evidence is shown because the jury, during deliberations, asked about the excluded medical records. The jury asked the following question:

What is considered evidence, and more specifically what we may have heard, as in the document that the plaintiff wanted to introduce as evidence about her doctor visit and HIV test on Nov. 1995? Is this evidence we can use since we heard it or we cannot since it was not introduced?

The trial court's response was "Evidence introduced and admitted and testimony from witness stand not objected to and objection not sustained is evidence." Dr. Seibert's direct testimony that the 17-month HIV test was negative was objected to initially by Price's counsel, but that objection was overruled. As the trial court instructed the jury it was evidence because the "objection [was] not sustained."

More importantly, even if the evidence about the 17-month negative HIV test was not before the jury, that evidence had little impact on the hospital's experts' opinions. The hospital's experts testified that the negative HIV test done at six months gave them a 95% confident opinion that Price's HIV was not a result of the needle stick, and the negative HIV test done at 10 months gave them an "over 99%" confident opinion that Price's HIV was not the result of the needle stick. A test at 17 months increased their confidence to "99.9%."

We hold that even if the trial court improperly excluded Dr. Meredith's medical records, the hospital has not shown that the error probably caused the rendition of an improper judgment, as the experts who testified reached the same opinion that Prices's onset of HIV four years later was too remote to relate to the needle stick at the hospital--regardless of whether Price tested negative at only 10 months or at both 10 months and 17 months. See Tex. R. App. P. 44.1(a)(1); see Able, 35 S.W.3d at 617; Alvarado, 897 S.W.2d at 753-54; Benavides, 189 S.W.3d at 879.

We overrule the hospital's first issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.
1. We requested a response from appellee, Angela Price, but she did not file one.
2. The ELISA test is an HIV screening test. It tests for the presence of antibodies, not for the presence of the virus. When a person contracts HIV, the virus itself is in the body. However, there is a lag between the time HIV is contracted and the time that the body makes antibodies to combat the virus. Thus, it is possible for a person to have HIV, but not have the antibodies. In other words, a negative antibody test does not necessarily rule out the presence of HIV. However, the antibody test gives very few false negatives when antibodies are present. The change of an antibody test from negative to positive, which indicates that the body has developed antibodies in response to the infection, is called "seroconversion." A person who does not have the antibodies is "seronegative"; a person who does is "seropositive."
3. The jury was asked a single question:

Do you find from a preponderance of the evidence that ANGELA PRICE did not   sustain a compensable injury, HIV (human immunodeficiency virus), in the course and scope of her employment with CHRISTUS HEALTH/ST. JOSEPH HOSPITAL on June 30, 1994?

Answer: Yes, if she was "not injured"

No, if she was "injured"

The jury answered "no."
4. When the trial court presented the charge to the parties for a final review, the hospital stated, "Plaintiff agrees, no objection."
5. To be admissible, an expert must also be qualified. See Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). In this case, the hospital has not challenged Dr. Salvato's qualifications. Dr. Salvato specializes in the treatment of patients with HIV and AIDS.
6. The record shows that Dr. Seibert testified as follows:

[Hospital's counsel]: Have you had an opportunity to review any additional HIV screening in Ms. Price's case?

[Dr. Seibert]: I saw the one test that was done seventeen months afterwards.

[Hospital's counsel]: And what was the result of that test?

[Dr. Seibert]: It was-

[Price's counsel]: Your Honor, I'm going to object, this is part of the body of documents you have excluded.

The Court: Overruled.

[Dr. Seibert]: Could you--I'm sorry?

[Hospital's counsel]: Sure. The question was--I forgot what the question was--

The Court: The court reporter can read it back for you.

[Hospital's counsel]: Let me start over. Has it come to your awareness that there was an additional HIV test in Ms. Price's case before December of 1998?

[Dr. Seibert]: Do you mean, did I--I learned of this additional test recently. I didn't--don't think I knew it up until fairly recently.

[Hospital's counsel]: Okay. And what was the result of this test seventeen months after the needle stick?

[Hospital's counsel]: It was positive--I'm sorry, it was negative.

The Court: Well, it's a document that has not been admitted into evidence, so its not something he can testify to.

[Hospital's counsel]: But he has relied upon it, Your Honor. He has reviewed it.

The Court: I haven't heard any reliance upon it at all.

[Hospital's counsel]: If--

The Court: In fact, it's been pretty clear that he did not use that to formulate his final report.

[Hospital's counsel]: Your Honor, there are some special circumstances surrounding this particular test.

The Court: You're going to have to get this in, in accordance with the rules of evidence.

[Hospital's counsel]: Okay.

[Hospital's counsel]: [Begins asking hypothetical involving 17 month test.]
7. The record shows that Dr. Seibert testified as follows:

[Hospital's counsel]: I want you to assume with me, for purposes of a hypothetical, that somebody has a needle stick event and tests negative on day one, negative six weeks, negative nine months, negative seventeen months, assuming those facts to be true, what does that do to the probability that HIV resulted from that needle stick?

[Dr. Seibert]: Well, it makes--it makes it almost impossible.

Dr. Septimus also testified about the consequences of a negative HIV test that was performed 17 months after an exposure to HIV. Dr. Septimus stated the he had "reviewed some records from Dr. Meredith," and stated that "[a]nother blood test was done, I believe, by Dr. Meredith." Dr. Septimus thus did not specifically testify as to the timing or the results of the test. However, Dr. Septimus stated that a negative test at six months gave him 95% confidence that the exposure had not resulted in HIV infection, that a ten-month test gave him 99% confidence, and that a 17 month test "would virtually rule out" that the exposure resulted in infection and that "it would be 99.9% that the transmission did not occur."
8. The hospital's counsel told the venire, "The evidence is further going to show that six months after that, in November of '95, she had another negative HIV screening, so more than 17 months post-event there was negative, negative, negative test."
9. The hospital's counsel argued,

It was like pulling teeth to get an answer to a simple question. And yet on direct examination, she was lucid, she was clear, she was articulate, very forthcoming with information. When I asked a question, I just go blank stares, confusion. She denied that she was in Dr. Meredith's office on November 21 of 1995 at 2:31 p.m. She denied that Dr. Meredith took blood and sent it to a lab for an HIV test. That never happened.

Later the hospital argued to the jury about Dr. Seibert's testimony as follows:

We asked Dr. Seibert, assuming we've got negative test on the day of event, six weeks, six months, nine months, based upon that, every time you repeat that test your confidence level goes up because it's a very sensitive test, so every time you keep testing, if you keep getting the same result, you're more and more confident with your findings. If she was tested at 17 months by Dr. Meredith on November 21 of 1995, what would that do to your confidence and your opinion, almost certainty. The needle stick had nothing to do with the '98 HIV positive status.

Finally, regarding Dr. Septimus's testimony, the hospital asserted,

And I asked [Dr. Septimus], here, "Have you become aware of the possibility of another antibody test, what would that do to your opinion that he expressed back in 2001, if - - if at 17 months there was another negative antibody screen in addition to the four that we knew about, a fifth one.["] It would make it almost absolute, that the needle stick had nothing to do with the infection.