For Physicians. By Physicians.™
For Physicians. By Physicians.™
A general principle of medical bioethics is beneficence – a healthcare professional should be guided by providing benefit to the patient which also includes preventing and/or removing harm. As medicine has advanced, nonpatients such as family members and intimate partners sometimes become downstream or ancillary recipients of direct care to the primary patient. In what instance will a physician be liable to a nonpatient in regards to treatment of a patient? The Connecticut Supreme Court ruled on this thorny issue in Doe v. Cochran, 332 Conn. 325, 328.
Briefly, in Cochran, the male patient might have been told his test results for herpes was negative when it was positive. The male patient later infected his girlfriend with herpes. She sued the physician for professional negligence. The trial court dismissed the case after ruling that the physician didn’t have a duty to the girlfriend because she was not his patient.
Several medical societies had requested from the Connecticut Supreme Court to uphold a trial court ruling that dismissed the case. The trial court ruled that the physician didn’t have a duty to the girlfriend because she was not his patient. Expansion of duty of care to nonpatients could potentially have a negative impact on patient confidentiality, patient care, and medical malpractice insurance rates.
Generally, Connecticut case law is strongly in favor of not expanding duty of care to nonpatients except under limited circumstances. Those circumstances include that the third-party is readily identifiable, there is an emergency risk of serious physical bodily harm or death, and a special relationship exists.
In other cases, physicians have been found to be responsible to nonpatients. For example, in Safer v. Pack 677 A.2d 1188, the court ruled held that a physician had a duty to warn those known to be at risk of avoidable harm from a genetically transmissible condition even if those individuals were not patients of the defendant physician. The physician had to take reasonable steps to assure that the information reaches those likely to be affected or is made available for their benefit.
On appeal of the case, the Supreme Court determined that the plaintiff’s claim was for ordinary negligence, not medical malpractice, even though it occurred in a medical setting. The error occurred because of a clerical or ministerial act. The alleged error could have occurred either in the initial interpretation of the report or in the inaccurate communication of the results, via the staff member, to the patient. The test result was obviously positive for herpes and its interpretation did not require advanced medical training. Moreover, the fact that the physician delegated communication of the test results to a nonphysician shows that communication with the patient was a nontechnical matter.
The Court ruled that the defendant owed a duty of care to the plaintiff despite her status as a non-patient, third party. The specific harm in this particular case was foreseeable because an untreated STI was direct implication for the infected person’s intimate partners. In addition, the third party or nonpatient was readily identifiable. The ruling is limited “only to identifiable third parties who are engaged in an exclusive romantic relationship with a patient at the time of testing, and, therefore, may foreseeably be exposed to any STI that a physician fails to diagnose or properly report.” Patient confidentiality is not violated because the physician is not obligated to communicate with nonparties but is obligated to communicate accurate results to patients.
The take home message is that the accurate communication of test results to patients during the course of medical treatment remains the responsibility of the physician even if downstream harm may impact someone other than her patient.
AMA Wire®: What duties do physicians owe to non-patients?
Supreme Court of the State of Connecticut
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