July 15, 2019

In a four-to-three decision of the Connecticut Supreme Court filed on July 12, 2019, the Connecticut Supreme Court decided whether a physician who mistakenly informs a patient that he does not have a sexually transmitted disease (STD) may be held liable in ordinary negligence to the patient’s exclusive sexual partner for her resulting injuries when the physician knows that the patient sought testing and treatment for the express benefit of that partner.

The Connecticut Supreme Court held: “Under the circumstances alleged, we conclude that the defendant […] physician, owed a duty of care to the plaintiff, identified by the pseudonym Jane Doe, even though she was not his patient.”

The Underlying Facts

In early 2013, the plaintiff began dating her boyfriend, identified by the pseudonym John Smith. At all relevant times, the plaintiff and Smith were involved in an exclusive romantic relationship. At some point, the couple agreed that, before their relationship became sexual, they would individually seek testing for STDs. As of July 2013, the plaintiff had tested negative for and did not have any STDs.

At that time, pursuant to his agreement with the plaintiff, Smith visited his physician, the defendant, who is a licensed medical doctor. During Smith’s visit, the defendant asked Smith why he wanted to be tested again for STDs, as the defendant had tested him just five months earlier. Smith explained that he wanted to be tested again for the protection and benefit of his new, exclusive girlfriend, the plaintiff. The defendant then took a sample of Smith’s blood, arranged for it to be tested for STDs, and subsequently reviewed the laboratory (lab) test results.

The lab report that the defendant reviewed included a guide for reading the test’s results. The guide indicated that an HSV 2 IgG (herpes simplex virus type 2 specific antibody) result of less than 0.9 is negative for the herpes simplex virus type 2 (herpes), a result between 0.9 and 1.1 is equivocal, and a result greater than 1.1 means that the sample tested positive for herpes.

Smith’s HSV 2 IgG test result was 4.43, significantly above the threshold for a positive herpes diagnosis. The defendant delegated to a member of his staff the task of informing Smith of the results of his test. Even though the lab report clearly demonstrated a positive herpes diagnosis, the staff member incorrectly told Smith over the phone that his STD test results had come back negative.

The plaintiff’s relationship with Smith subsequently became sexual. Thereafter, the plaintiff began to experience herpes outbreaks and was diagnosed with herpes. Upon learning of this, Smith contacted the defendant to inquire further about his test results. The defendant then informed Smith that he actually had tested positive for herpes and apologized for the error.

The plaintiff brought a one count action against the defendant, alleging that the defendant had been negligent in various respects. The defendant moved to strike the complaint on the basis that the plaintiff’s claim sounded in medical malpractice and, therefore, must fail for lack of any physician-patient relationship between the plaintiff and the defendant. The defendant argued in the alternative that, even if the court construed the plaintiff’s claim as sounding in ordinary negligence, the plaintiff and the defendant were not involved in any special relationship that would justify extending a duty of care to her.

The trial court granted the defendant’s motion to strike, ultimately concluding that the defendant did not owe a duty of care to the plaintiff. The plaintiff subsequently filed an appeal.

Connecticut Supreme Court Opinion

The Connecticut Supreme Court stated that assuming, for the sake of argument, that the defendant is correct that the plaintiff’s complaint reasonably can be read to allege that he committed professional malpractice by failing to follow accepted medical standards in his advising, treatment, and ongoing testing and monitoring of Smith, the question that it must resolve is simply whether the complaint also alleges that the defendant committed ordinary common-law negligence by permitting or instructing his office staff to give Smith the wrong test results.

Medical Malpractice vs. Ordinary Negligence

The Connecticut Supreme Court stated that a claim sounds in medical malpractice when (1) the defendant is sued in his capacity as a medical professional, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. In an ordinary negligence claim, the defendant’s conduct is judged against the standard of what a reasonable person would have done under the circumstances.

In the case it was deciding, the Connecticut Supreme Court stated “we agree with the plaintiff that her allegations reasonably can be understood to sound in ordinary negligence. It is true that the alleged error transpired in a medical setting and that it arose as a result of a medical diagnosis in the context of an ongoing physician-patient relationship … [however] the alleged error is not one involving professional medical judgment or skill … the very fact that the defendant delegated the task to a staff member, who presumably was not a medical doctor, points to the nontechnical nature of the communication … regardless of whether the alleged error arose from a misreading or a miscommunication, proving that it constituted negligence would not require expert medical testimony or the establishment of a professional standard of care … the plaintiff’s claim sounds in ordinary negligence.”

Duty Of Care Owed To Third Party Who Is Not A Patient

The Connecticut Supreme Court stated: “The default assumption of the common law, then, is that one owes a duty to exercise due care in one’s affirmative conduct with respect to all people, insofar as one’s negligent actions may foreseeably harm them … Under specific circumstances, however, the law, for reasons of public policy, places additional restrictions on the class of people to whom a duty of care is owed.”

Negligent Misrepresentation

The Connecticut Supreme Court continued: “Although the plaintiff has not labeled it as such, her claim is, in essence, one for negligent misrepresentation. That tort specifically encompasses situations such as this, in which a tortfeasor negligently supplies misinformation knowing that the recipient of that information intends to supply it in turn for the benefit and guidance of a third party.”

Identifiable Third Party

In the case it was deciding, the Connecticut Supreme Court stated: “In the present case, by contrast, the plaintiff has alleged that ‘‘Smith told [the defendant] that he was seeking STD testing not only for his benefit, but for the protection and benefit of his new, exclusive girlfriend, [the] plaintiff.’’ Construing this pleading in the light most favorable to sustaining the sufficiency of the complaint, we must conclude that the plaintiff was an identifiable, if not identified, potential victim of the defendant’s alleged negligence at the time that treatment was rendered. That is to say, only one woman could have fit the description of Smith’s exclusive girlfriend, and Smith presumably could have identified her by name if he had been asked to do so … This identifiable victim requirement strikes an equitable balance between the interests at stake. Although a health care provider’s liability may expand beyond his or her patients, its increased scope would encompass only those third-party victims of whose existence and potential exposure to harm the health care provider had been made aware—or could have become aware—prior to the negligent act.”

The Connecticut Supreme Court stated: “we find Connecticut precedent to be unsettled with respect to the particular question presented here. Although we never have been confronted with the question of a physician’s duty to a third party with respect to the reporting of STD test results, and although we consistently have expressed a general aversion to extending the duty of health care providers to third parties, we have allowed, under limited circumstances, for the imposition of liability to an identifiable potential victim who will be foreseeably harmed by a physician’s negligence.”

Public Policy Factors

The Connecticut Supreme Court stated “because the question presented is one of first impression in Connecticut, we consider various public policy factors that both this court and other authorities have deemed to be relevant to whether and under what circumstances a physician owes a duty of care to a nonpatient third party. On balance, we conclude that those factors support the imposition of a third-party duty of care under the circumstances of the present case.”

The Connecticut Supreme Court stated: “the principle that a physician’s duty to protect the broader public health and to help to deter the spread of contagious diseases at times transcends the physician’s duty to his or her individual patient has long been codified in federal and state law … the fact that herpes is incurable highlights the extent to which a physician’s duties in a case such as this run to third parties as well as to the patient, as it will be the patient’s potential sexual partners who are the most direct beneficiaries of the diagnosis … the duty of care that a physician owes to his or her patient in the diagnosis and treatment of infectious and sexually transmitted diseases also, necessarily, entails some duty to third parties who are likely to contract the disease from the patient … we perceive little risk that imposing a third-party duty under these circumstances would interfere with the physician-patient relationship, breach patient confidentiality, or require the practice of costly defensive medicine.”

“In conclusion, we think that it is beyond cavil that physicians such as the defendant owe some duty of care to third parties when diagnosing and treating a patient who suffers from an STD. We do not believe that imposing the duty for which the plaintiff advocates would intrude on the sanctity of the physician-patient relationship. Indeed, the duty at issue here—simply to accurately relay the patient’s test results to the patient—is far more limited and less intrusive than the public health reporting and partner notification requirements that have been imposed on physicians in the context of diagnosing and treating infectious diseases … we note that it would not be unreasonable for a jury to conclude that the defendant, and not the plaintiff or Smith, was most effectively and economically situated to avoid the harm that befell the plaintiff.”

The Connecticut Supreme Court held: “we emphasize that the duty that we recognize today is quite limited. It extends 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 STD that a physician fails to diagnose or properly report. And the physician fully satisfies that third-party duty simply by treating the patient according to the prevailing standard of care and accurately informing the patient of the relevant test results.”

Source Doe v. Cochran, SC 19879.

If you or a loved one may have suffered serious harm as a result of the misdiagnosis of a STD in Connecticut or in another U.S. state, you should promptly find a Connecticut medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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