Your duty to protect non-patients

By David J. Lowe, Esq. & Kelly Vehec, Esq.

Suppose that you have a patient with a contagious disease. Do you have a duty to protect those with whom your patient interacts—or warn them that they may be at risk of contracting the disease? Does it matter whether or not the disease is a “reportable” one? Does it matter whether or not you know, or know of, the persons who may be at risk? If not, do you have a duty to find out who they are?

Though certainly not new, the issue of whether a physician may be liable to a third party who contracts a contagious disease from a patient under that physician’s care is becoming more timely as the number of these cases increases, new viruses are discovered and drug-resistant strains appear. This issue is also one of universal relevance: virtually every physician, in the course of his or her career, will treat someone with a contagious disease.

The nature and extent of a physician’s duty to third persons when he or she undertakes the treatment and care of a patient with a highly contagious, but ubiquitous, disease was addressed by the Superior Court of Pennsylvania in the 1996 case of Troxel v. A.I. DuPont Institute.

The plaintiffs in Troxel were the parents of an infant who contracted cytomegalo-virus (CMV) in utero and died from that disease shortly after birth. Mrs. Troxel, the mother of the infant, had contracted CMV from a friend’s infant daughter, whom she frequently visited and helped to care for while she was pregnant with her own child.

Mrs. Troxel’s friend had been told that she and her daughter carried CMV. However, she was not told until several months after the initial diagnosis that this disease was contagious and posed a special danger to pregnant women and their unborn children. By then, Mrs. Troxel was in her third trimester and had already been infected with CMV; her son died from the disease three months after birth.

Distraught over what they believed to be their son’s unnecessary death, the Troxels pursued negligence and medical malpractice claims against the medical centers and the physician who had treated their friend and her daughter. The Troxels alleged that the providers had a duty to warn their patient that CMV posed a special risk to pregnant women and their unborn children, and that their failure to do so in a timely manner caused the death of their son.

The trial court ruled in favor of the providers and against the Troxels, holding that, as a matter of law, a physician has no duty to control the conduct of his or her patients so as to prevent them from causing harm to another unless a special relationship exists between the physician and the third party, or between the physician and the patient, such as when a psychiatrist knows of the dangerous propensities of his or her patient.

The Troxels appealed, and the Superior Court of Pennsylvania held that the above rule was not the law of Pennsylvania. Instead, the court found that a physician could be liable to a person who was not his patient regardless of whether a special relationship existed, if that person was in the class of persons whose health was likely to be threatened by the patient, and if erroneous advice was given to the patient to the ultimate detriment of that person. In such cases, the court reasoned, the physician should recognize that the information he or she gives to the patient is necessary to protect third parties who are “within the foreseeable orbit of risk of harm.”

Applying this rule to the facts of the case, the Troxel court found that the medical community was well aware of the risks CMV posed to in utero infants. Therefore, the Troxels’ unborn son was within that class of persons whose health was likely to be threatened by the infected patient. As a result, the case was remanded to the trial court to permit the jury to determine whether or not the physician acted appropriately under the circumstances.

The court’s decision in Troxel makes several points clear. As an initial matter, it is important to note that the court did not impose upon the physician a duty to inform third parties of the risks posed by his patient. Rather, it held that, absent a special relationship, the standard of care for a physician who is treating a patient with a communicable disease is to inform the patient of the nature of the disease and its treatment, to treat the patient and to inform the patient how to prevent the spread of the disease to others. Once a physician has complied with this standard, the burden falls upon the patient to prevent or protect against transmission of the disease to others.

Second, Troxel confirms that physicians may be held liable not only for providing erroneous information to their patients, but also for providing correct information in an untimely manner or failing to provide any information at all.

Third, the duty to inform patients of the risks of their communicable diseases applies not only to “reportable” diseases, but to any communicable disease whose risks are unlikely to be commonly known outside of the medical profession. In this regard, the Troxel court specifically addressed—and allayed—the concern that its holding would render physicians liable for the spread of any infectious disease, including flu or the common cold. It emphasized that its ruling was intended to ensure that information regarding the infectious nature of a communicable disease be made available for the protection of others besides the patient.

The court observed that, with viruses such as the flu or colds, such information is common knowledge. In contrast, where certain risks regarding the spread of a communicable disease may only be known within the medical profession, it is essential that correct information be disseminated by the physician. Thus, in the case of AIDS or hepatitis, physicians have a duty to inform their patients how to prevent the spread of the disease by avoiding specific high-risk behaviors, even though the general population might otherwise not be at risk.

Pursuant to Troxel, there are several steps physicians can take to protect themselves from liability to third parties who are injured by contact with their patients who harbor communicable diseases.

It is imperative that correct and complete information regarding the patient’s disease be communicated to the patient in a timely manner, even if that disease presents a risk only to a certain subset of the population.

It is equally imperative that physicians document the substance and conveyance of this information in the appropriate records.

Physicians should be sure to take a thorough and adequate history of the patient, including questioning the patient about his or her lifestyle, to ensure that they are not overlooking any particular or unusual risk.

If a physician has reason to believe that a patient poses an especially grave risk to a known individual, he or she should strongly consider whether an ethical or legal obligation exists to inform that individual of the risk.

If these steps are taken, physicians can significantly minimize or eliminate their risk of liability to non-patients.

David J. Lowe, Esq., is a director in the Pittsburgh law firm of Cohen & Grigsby, P.C. He practices in the area of health care law. Kelly Vehec, Esq., is an associate with the same law firm.