The Volokh Conspiracy

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Volokh Conspiracy

Doctor Liable to Patient's Sex Partner …

... for negligently (and erroneously) telling the patient he had tested negative for an STD.


So the Connecticut Appellate Court held Tuesday in Doe v. Cochran, by a 4-3 vote; you can read the majority and the dissent. Courts are split on this question (and its analogs), as pp. 11-12 of the dissent note. The majority notes that its opinion is limited, though it's not clear whether the limitations (e.g., to exclusive romantic partners)will remain tenable in future decisions:

[T]he duty that we recognize today … 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. Whether there are other, broader circumstances under which a physician may be held to owe a duty of care to a nonpatient third party who foreseeably contracts an infectious disease as a result of the physician's negligence is a question that we need not resolve today.

I think the majority is generally right: To quote the Restatement (Third) of Torts:

An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

A doctor's telling the patient that the patient has tested negative for a sexually transmitted disease creates a risk of physical harm to the patient's sexual partners—it increases the likelihood that the patient will have sex with them, or will have sex with them without proper protection. (The STD here was herpes, which can be spread even if the man wears a condom, but apparently condom use does decrease the risk; also, herpes medication apparently reduces the risk of spreading the virus as well.) And the risk to the third party is certainly foreseeable.

If the doctor or the doctor's employees acted unreasonably—for instance (as alleged in this case), the doctor "misread [the] lab report," or the doctor "misinformed his staff member," or "the staff member misinformed [the patient]"—then they should be held liable. That's not some special new legal duty; it's just the basic duty that all of us have to act reasonably when our actions create a risk of physical harm to others.

The Restatement does note that, "In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification." That's why, for instance, most courts have adopted various so-called "no-duty" or "limited-duty" rules, such as the rule in most states that a social host who serves alcohol to guests can't be liable to third parties who are injured when the guests drive drunk. But I don't see a basis for imposing such a limitation here.

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  1. Medicine is not a 100% domain. These tests are statistical with false positive rates and false negative rates. Let's stop this bullshit of hiding medicine providers for bad outcomes that randomly exist. There's a difference between negligence and bad outcomes.

    This is just a generalized argument of medical lawsuits in general.

    1. There's a difference between having a test with a known error rate, with a test that produced an inaccurate result, and having a test that produced a positive result and telling the patient the test was negative.

      1. Exactly. The decision deliberately points out it is not stepping on the toes of the current standards of medical care, which would be ludicrous. Rather the doctor goofed and reported the wrong result, no STD, when there was, and the partner caught it.

        Some "get tested" because they love that flesh-against-flesh feeling!

        1. More accurately the test was correct, but the doctor reported the wrong result.

    2. "...the results were positive for genital herpes. The defendant delegated to a member of his practice staff the task of informing S of the test results. The staff member incorrectly told S over the phone that his STD test results were negative."

      1. You can't quote a passage from the legal opinion in a post about a legal opinion! It's not fair to those who don't want to read and instead just want to say if it's not 100% infallible then no one should be responsible.

        Maybe if there were a YouTube video or a tl:dr thqt I could understand, it would be okay. Otherwise, not fair.

  2. Poor guy should've argued for qualified immunity.

    1. Unfortunately, for most STDs there is no immunity of any kind, qualified or absolute. Nature is not subject to the self-serving whims of our legal system.

  3. Remind me not to go to Dr. Nick Riviera's Free STD Clinic and Boom Boom Room next time I have an open sore on my junk.

  4. In this matter, the dissent opines that "Given that the legislature has acted extensively [...] to provide physicians relief from professional liability, I am hesitant to usurp its ‘primary responsibility for formulating public policy’ by recognizing a new duty to third party nonpatients."

    As a general question, should common law (and/or common sense) prevail over statutory law? That is, absent Constitutional prohibitions, should an elected legislature be free to exempt favored parties from liabilities to which those parties would otherwise be subject? Does any Constitutional prohibition generally preclude a legislature [or at least the federal legislature] from "carving out" liability exemptions for those the legislature favors?

    To be sure, physicians (as an example class) enjoy statutory favor: for example, greedy drug dealers called "physicians" are treated differently than greedy drug dealers called "gangsters," resulting in the current opioid debacle. Is this right? Is this in any way prohibited?

  5. "As a general question, should common law (and/or common sense) prevail over statutory law?"

    That would virtually eliminate statutory law, which seems excessive. Louisiana would take it especially hard.

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