Sharply Divided CT Supreme Court Expands Scope of Physician Liability for Giving Patient Mistaken Negative Result on STD Test
By Daniel Chavez and Christian Kummer. This article will appear in the August edition of LGBT Bar NY’s LGBT Law Notes, the most comprehensive monthly publication of LGBT legal Developments here and abroad. Subscribe:
In the case of Doe v. Cochran, the Supreme Court of Connecticut, by a 4–3 vote, held that a physician, Charles Cochran, owed a duty of care to the plaintiff even though she was not his patient. In this case of first impression for Connecticut, the court considered the issue of whether a physician who mistakenly informs a patient that the patient 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.
In early 2013, the plaintiff (identified by the pseudonym, “Jane Doe”) began dating her boyfriend (identified by the pseudonym of “John Smith”). Before their relationship became sexually intimate, both the plaintiff and her boyfriend agreed to undergo testing for STDs. As of July 2013, the plaintiff had tested negative for all STDs. When Smith visited his physician, he was asked why he was testing for STDs considering he had undergone testing just five months earlier. Smith explicitly stated to the physician that he was being tested for the benefit and protection of Doe. After Smith’s lab report was finalized, the physician delegated to a staff member the task of informing Smith of his test results. While Smith clearly tested positive for herpes, he was mistakenly told that his test results had come back negative. Under the belief that both parties had tested negative for all STDs, Doe and Smith began a sexual relationship. Sometime thereafter, Doe developed symptoms of herpes. After contacting his doctor to inquire once more about his STD status, Smith was informed that he had in fact tested positive for herpes. The defendant apologized to Smith for his staff member having provided incorrect information.
After Smith’ relayed his conversation with his doctor to Doe, she filed a tort action against Dr. Cochran, although it was unclear at trial in Stamford-Norwalk Superior Court, whether claims of negligence or medical malpractice were being made. The defendant moved to dismiss Doe’s claim, arguing that no official physician-patient relationship existed between Doe and the defendant, relying on the required privity element of a medical malpractice suit. Superior Court Judge Kenneth B. Povodator sided with the defendant, granting his motion to strike Doe’s claim. The judge appeared to have viewed Doe’s claims as sounding in ordinary negligence, but concluded that the defendant did not owe a duty of care to Doe.
The Supreme Court, reversing in an opinion by Justice Richard Palmer, reasoned that Doe’s claims clearly sound in ordinary negligence rather than medical malpractice, as the specific error that caused harm was not a matter of faulty administration or interpretation of the test, but rather careless office administration. Medical malpractice involves the failure to exercise requisite medical skills. The defendant did not deviate from a requisite standard of care but, rather, failed successfully to deliver the test results to Smith due to a communications error in his office.
Because the court found that the pleadings contained enough allegations to bring a claim for ordinary negligence, the court next reviewed whether the defendant physician owed a common-law duty of care not only to his patient, Smith, but also to the plaintiff, a non-patient yet identifiable third party. The court ruled that, under the circumstances presented, a physician does in fact owe a duty of care to an identifiable third party who is not a patient. The court considered a host of factors in its determination, including relevant public policy arguments, and the case law of other jurisdictions.
Justice Palmer’s opinion expressly limited the holding as a narrow interpretation of the duty requirement by stating that “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.” The opinion states that “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.” The court’s analysis focused on whether a duty existed at all to the third-party plaintiff and relied on the familiar concept in the law of the reasonable foreseeability of a resulting harm.
The court thus clarified the scope of the duty by carving out a narrow exception to the general duty rule. The court relied on the Restatement (Second) of Torts, and was persuaded by the characterization of the claim as one resembling negligent misrepresentation, “where 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.” Because the Restatement deals specifically with “limitless third-party liability, first, by conferring standing only on those third parties to whom the defendant knew that the recipient intended to supply the information… and second, by restricting liability to losses arising from transactions for the purpose of which the information was supplied,” the court was clear in its delineation of its exception to the general duty rule.
Moreover, the court considered other professional contexts in which the issues of privity and special relationships may arise, such as the attorney-client relationship. The court acknowledged that a number of jurisdictions have done away with a traditional privity requirement and have imposed liability on attorneys when the attorney’s advice is sought for the benefit of an identifiable third party, and the attorney is aware that his or her advice is sought for that specific purpose. The court was explicit that “they would not employ or endorse a per se rule that third party claims against health care providers are categorically barred because of the absence of a physician-patient relationship,” and “left open the possibility that, under the appropriate circumstances, and in particular with respect to the diagnosis of communicable diseases, a physician’s common-law duty of care may extend to non-patients.” The court was clear that, “under these circumstances, imposing third-party liability would play an important role in spurring physicians such as the defendant to take greater care in reporting STD lab results.”
Two important public policy concerns stood out in Justice Palmer’s reasoning. First, 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,” which the court noted had been codified in both state and federal law. Specifically, Connecticut had passed laws requiring physicians to test pregnant patients for syphilis and HIV and to report certain infectious diseases to state and federal authorities. Second, the court looked to the “purposes of the tort compensation system, which seek to compensate innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities and deterrence of wrongful conduct.”
Finally, the court was not persuaded by “slippery-slope” and administrability concerns, given the rare nature of this sort of mistake, and the absence of logistical hurdles related to disclosing medical records. In addition to the court’s more traditional negligence analysis, the court also employed a decidedly pragmatic “law and economics” approach when it reasoned that a jury might reasonably conclude that “the defendant, and not the plaintiff or Smith, was most effectively and economically situated to avoid the harm that befell the plaintiff.”
Chief Justice Richard Robinson filed a lengthy dissenting opinion. He was particularly concerned about how this ruling would affect the confidentiality of the doctor-patient relationship and its potential effect on already high malpractice insurance rates for physicians, which might lead some physicians to abandon practice or to curtail the services they offer in order to avoid potential liability due to inadvertent mishaps in their offices. He suggested that the potential social ramifications of the ruling supported leaving this issue to the legislative branch, rather than common law development. He also noted the sharp split of authority on this question from other jurisdictions.
Whether this decision has a chilling effect on medical providers — especially those who care for HIV-affected individuals and communities, remains to be seen. In the meantime, however, the state’s medical/hospital interests might follow up on Chief Justice Robinson’s argument and approach the legislature for an overruling of this common law decision.
Thomas B. Noonan represented appellant Jane Doe. James S. Newfield and Diana M. Carlino represented Dr. Cochran. The court received amicus briefs from the American Medical Association, the Connecticut Hospital Association, and the Connecticut Trial Lawyers Association.