What duties do physicians owe to non-patients?

Tanya Albert Henry , Contributing News Writer

After a Connecticut physician tested a patient for sexually transmitted diseases, his office may have mistakenly informed the patient that the test results came back negative. The patient’s girlfriend claims her boyfriend—who was the patient—tested positive for herpes and later infected her with the disease.

The girlfriend—who was never the physician’s patient and whom the physician was not aware of while providing care to her boyfriend—has sued the doctor for claims that all relate to professional negligence.

Does the physician have a duty to the girlfriend? It’s a question the Supreme Court of the State of Connecticut is poised to answer.

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The court heard arguments in November and asked the Connecticut State Medical Society (CSMS), along with other organizations, to submit a friend-of-the-court brief in the case, Doe v Cochran. The Litigation Center of the American Medical Association and State Medical Societies and CSMS filed an amicus brief that urges Connecticut’s highest court to uphold a trial court ruling that dismissed the case in a ruling that said the physician didn’t have a duty to the girlfriend because she was not his patient.

“To best engage in risk-management and to provide optimum care to a patient, health care providers must be afforded a clear understanding of which persons are considered legally foreseeable victims to whom they may be liable; they cannot reasonably be expected to procure a list of current and potential sexual partners from a patient in order to accomplish this,” the Litigation Center brief states.

While the doctor, Charles Cochran, MD, may have known the patient was planning to have a sexual relationship with a woman, he didn’t know who the woman was; physicians told the court through their brief.

Consequently, if the court were to open physicians up to negligence lawsuits filed by non-patients, it would open physicians up to liability for “anyone whom the patient may have sexual contact in the future, which theoretically, is an infinite number of potential victims,” the brief states.

The brief goes on to ask: How long will a physician’s duty exist to that unknown class of plaintiffs and what would the statute of limitations be? Physicians told the court that one study done in connection with the New York City Department of Health found that 88 percent of people who tested positive for herpes had no symptoms. So, the brief says, Dr. Cochran’s patient could have carried the herpes virus for months, or even years, infecting many potential plaintiffs.

Opening the door to lawsuits from people a physician never treated has the potential to drive up medical liability insurance rates because physicians could face so many more lawsuits. Also, allowing non-patients to sue could negatively impact patient care and raises serious concerns about “the ethical principles of patient-provider confidentiality and privacy,” the brief argues.

“Will physicians require that each patient seeking a diagnosis for an STD disclose the names and addresses of the people with whom these patients have had or could have a sex with? Will patients be unwilling to submit to STD testing if their physician requires such a disclosure? What will the effect be on physicians’ willingness to test for these diseases?” the brief says. “All of these unanswered questions reflect why this court should not be taking it upon itself to create a new rule that would have such a large impact on patient care when there is so much more research and deliberation to be done on the topic first.”