Most physicians are aware that there is a duty to provide reasonable care in the patient-physician relationship. Typically, malpractice liability does not extend to anyone outside of that relationship. However, there are certain extraordinary circumstances in which a physician may have an obligation to a third party, one that is outside the patient-physician relationship.
The most famous and precedent-setting case is that involving Ms. Tatiana Tarasoff. In that case, Mr. Prosenjit Poddar had a patient-physician relationship with his psychiatrist. He told the psychiatrist of his intention to kill Ms. Tarasoff. Without getting too deep into the facts of the case, the psychiatrist never notified the authorities, and Mr. Poddar killed Ms. Tarasoff. A California Court determined that in this exceptional circumstance where there was a direct threat of foreseeable harm to a specific individual, the physician had a duty to a third party outside the patient-physician relationship. (1)
That case was the first of its kind (i.e., precedent), and it established duty to third party law as a recognized cause of action. It has been a fascinating evolution, with some states recognizing the new cause of action, and others not. It is important to recognize that this is not medical malpractice law; the cases are based on ordinary negligence and are typically not covered by medical malpractice insurance policies.
Consider the following duty to third party cases, and when appropriate, try and put yourself into the shoes of the provider. How does this law impact physician conduct in day-to-day patient care?
A 66-year-old inpatient, known to be combative, was running her wheelchair into people on the ward and pushing staff members on a regular basis. The nurses and private physicians were aware of this dangerous conduct. She subsequently assaulted a phlebotomist, injuring her arm. A Trial Court determined that the hospital had a duty to warn staff about foreseeable dangers. The Appellate Court and the New Hampshire Supreme Court affirmed. (2)
New Hampshire has state law creating a duty to warn regarding any serious physical threat to a named individual. In addition, the Supreme Court indicated there was a common law duty to warn in a situation like this one. That is a “reasonable person” standard, not the reasonable professional standard; therefore, an expert’s testimony is not required.
A 29-year-old man, CW, was admitted for lethargy and changes in mental status. Several tests were sent to an outside lab, including a test for HIV. The patient was discharged before the HIV results returned. The HIV test result was positive. The hospital did not tell the physician or family, and did not report it to the state as required.
A few months later, the patient became romantically involved with EY, who later testified she had no other sexual contact besides with the patient. She became pregnant and had a baby daughter. Four years later, she became ill and was diagnosed with AIDS. Her child also tested positive for HIV. CW was the patient; EY and her daughter were the third parties. They sued the hospital for failure to disclose the HIV results.
The Trial Court granted summary judgment against the woman and her child, indicating there was no relationship and no duty to warn or disclose to a third party. The Appellate Court reversed, stating that the hospital had a duty to warn the woman and to communicate to those reasonably foreseeable individuals whose health was likely to be threatened by the patient’s ignorance of his own health status.(3)
Miscellaneous Case Review
As you read through these various cases, think about situations you may be in where a patient may put others in harm’s way.
An interesting but tragic example is a case where a patient was riding a motorcycle; he got something in his eye and came to the emergency department for treatment of a corneal abrasion. The physician applied an eye patch, and did not warn the patient not to operate a motor vehicle or specifically to stay off his motorcycle. The patient got back on his motorcycle and ran into a car; a mother and 2 children were killed. The duty is to provide reasonable care under the circumstances, which would have simply been a warning to the patient to refrain from operating a motor vehicle. Consider that in certain circumstances, the practitioner may have a duty to the driving public.
Think about patients leaving your office, urgent care or emergency department with a splint on the right leg. These patients need a warning in a well-documented discharge instruction to not operate a motor vehicle.
Or consider an outpatient with a psychiatric problem who, as in the Tarasoff case, has plainly stated that he intends to kill someone; more specifically, the patient actually named the intended victim. There is probably a duty to warn.
States recognize the importance of keeping the public safe from harm through reporting regulations or statutes related to infectious disease, diabetes and seizures. But outside of those regulated situations, practitioners should be aware of the concept of the duty to third parties as well as the zone of foreseeable harm. If faced with this type of situation, get help whenever possible; call an administrator or legal counsel if you have access.
Once again, this is a developing area of the law, and not all states recognize the duty to third party lawsuit. But in general, having a basic knowledge of the concept of duty to third parties is important, and in most cases, it is just logical; if the patient is going to put a third party or the driving public at harm, it is a good idea to warn or consider reporting to the relevant authorities.
The flip side is also important to consider. Patients have an expectation of privacy, and HIPAA prevents inappropriate disclosure of patient information. So there is absolutely a balance that must be struck. It is easy when the patient only requires a simple warning; it is far more difficult when alerting the authorities about a patient who may represent a danger to a third party.
Download this Duty to Warn Third Parties Fact Sheet for reference.
This topic is covered more extensively in our online course:
1 Tarasoff v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, 1976.
2 Powell v. Catholic Med. Ctr., 749 A.2d 301 (N.H. Mar. 21, 2000).
3 CW v. The Cooper Health System. (N.J. Super. Ct. App. Div., Aug. 10, 2006).