Opinion
FSTCV155014849S
03-18-2016
Jane Doe v. Charles Cochran
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#109.00)
Kenneth B. Povodator, J.
This is an action in which the plaintiff is seeking to extend medical malpractice liability of a physician to the sexual partner of a patient. The alleged facts describe a situation that certainly is sympathetic. However, while the goal of the tort system may be to provide remedies to those who have been wronged, appellate-level decisions repeatedly have stated that not every wrong is remediable through the tort system. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks and citation, omitted.) Lawrence v. O& G Industries, Inc., 319 Conn. 641, 666, 126 A.3d 569 (2015). The issue in this case, then, is whether this situation is one for which the tort system (in Connecticut) does/should recognize a remedy, or whether the court should adhere to the " default" position that a physician (generally) only is responsible to his/her patient.
The plaintiff sought and was given permission to proceed under the pseudonym of Jane Doe, see, Practice Book § 11-20A and docket entry #101.01. References to the defendant's patient (the plaintiff's boyfriend) also are by way of a pseudonym, i.e. Mr. Smith.
At page 5 of her objection to the motion to strike, the plaintiff relies on the dissent in Jarmie v. Troncale, 306 Conn. 578, 584-85, 50 A.3d 802 (2012), challenging a statement of the majority relating to the requirement that a medical malpractice action involves a physician-patient relationship. This court is bound by the decisions of the Connecticut Supreme Court, and to the extent that the majority opinion generally requires a physician-patient relationship, this court must follow that dictate. However, the significance of Jarmie is its recognition of the possibility of causes of action premised on relationships not previously recognized for purposes of tort liability. To that extent, the focus should be on the extent to which the majority left the door open, rather than the position of the dissent in opposing a presumptive limitation. The majority opinion in Jarmie will be the benchmark/template for the analysis in this decision.
The court will not go into any detail with respect to the well-established standards for a motion to strike. In evaluating a motion to strike, the court is required to accept as true the well-pleaded facts, and is required to give the non-moving party the benefit of reasonable/favorable inferences to be drawn from those factual allegations. Accordingly, the court will start with a modestly edited recitation of the facts as contained in the plaintiff's brief in opposition to the motion to strike, in turn generally based on the allegations of the complaint:
The plaintiff and her boyfriend (Mr. Smith) began dating in early 2013. Before their relationship became intimate, they decided to get tested for sexually transmitted diseases (STDs). The plaintiff insisted so as to avoid the pain, symptoms, and stigma associated with an STD. Plaintiff also desired to have a family and knew that an STD might complicate a pregnancy and might put a baby's health and welfare at risk. The plaintiff believed that she did not have an STD at the time of their agreement, and the plaintiff's subsequent STD test in accord with their agreement came back negative.
Mr. Smith claimed/believed that he did not have an STD at the time of his agreement with the plaintiff. Pursuant to their agreement, in July 2013, Mr. Smith went to his doctor--defendant Cochran--for testing. The defendant knew that Mr. Smith had already been tested for STDs in February 2013 and inquired why he wanted to get tested again so soon thereafter. Mr. Smith told the defendant that he was seeking STD testing not only for his benefit, but also for the protection and benefit of his new, exclusive girlfriend, the plaintiff. In that manner, the defendant had been put on notice that the plaintiff's health might be implicated by the testing and/or diagnosis of Mr. Smith with respect to STDs.
The defendant drew Mr. Smith's blood for the STD test and ordered the STD test(s). On or about July 26, 2013, the defendant received Mr. Smith's STD test results. For HSV 2 IGG (herpes), Mr. Smith's result was 4.43. With respect to the STD portion of the test dealing with HSV 2 IGG, the lab report provided an index or guide to assist in interpretation, less than 9 is negative, 9 to 1.1 is equivocal, and greater than 1.1 is positive.
In late July or early August 2013, a member of the defendant's staff informed Mr. Smith over the telephone that his STD test results were negative. In August 2013, the plaintiff began experiencing outbreaks of herpes despite her recent clean bill of health, and her doctor subsequently confirmed that she had acquired herpes.
After the plaintiff relayed the information to him, Mr. Smith contacted the defendant to re-inquire about his STD test results. Contrary to the previous indication from the defendant and/or his office that his test results had come back negative, the defendant informed Mr. Smith that his test results had " ranges." The defendant confirmed that Mr. Smith's test results were positive for herpes.
In the complaint, the assertion is that Mr. Smith believed that he did not have an STD, in the objection to the motion to strike, the plaintiff seems to claim that he factually did not have an STD at the time of the agreement. If the latter were true, how/when did he acquire the condition? (The court relies (is required to rely) on the version set forth in the complaint.)
Again, the defendant's position is that the absence of a physician-patient relationship is fatal to this claim; the plaintiff's position is that if not already authorized by existing tort law, the court should recognize a valid tort claim in this type of situation i.e. negligence in reporting test results when the test involved a communicable health condition and the physician was aware of the patient's partner whose health would or might be adversely affected if an erroneous-negative test result were to be reported.
Discussion
The court recognizes that this situation is a highly sympathetic one--the plaintiff asserts that she had done all she could to protect herself, at least with respect to knowledge relating to potential exposure to certain communicable diseases, but those efforts were for naught due to claimed negligence on the part of Mr. Smith's physician in reporting the test results.
There are precautionary measures that could be taken regardless of information available; the desirability and/or efficacy of such alternate approaches, and their possible bearing on the outcome of this case, need not be addressed at this time.
The plaintiff seems to recognize that Jarmie (see footnote 2) provides the benchmark for the outcome of this case Presumptively limiting medical malpractice to physician-patient relationships, the Jarmie court did recognize the possibility that other situations might be appropriate for tort liability, despite the absence of any apparent physician-patient relationship. This court, in fact, has on occasion relied on Jarmie in determining that scenarios that do not fit within the typical physician-patient paradigm nonetheless are or should be actionable. See, Krayeski v. Greenwich Hospital , FST-CV-146022177-S (emotional distress of mother arising from allegedly negligent delivery of child, based on physical injury to child), Meleney-Distassio v. Weinstein, FST-CV-136018746-S (claims asserted by father/husband arising from a decision to abort fetus approaching viability based on erroneous information as to existence of genetic defects). Both of these cases allowed for the right of recovery by a party not directly in a physician-patient relationship with the doctor with respect to the specific harm at issue. (In Krayeski, the mother was a patient, but the specific claim at issue was based on an injury to " someone else" i.e. an injury she sustained in a capacity other than as the patient.)
The defendant in Krayeski initially tried to characterize the claim as a then-impermissible bystander emotional distress claim arising from medical malpractice; after the decision of the Supreme Court was issued in Squeo v. Norwalk Hospital, 316 Conn. 558, 113 A.3d 932 (2015), the defendant modified its position to assert that the claim did not come within the scope authorized by Squeo .
In both of these previous cases, this court had recognized the " biological necessity" of the challenged plaintiff's role (procreation requires a father; delivery of a newborn requires a mother). Biological necessity confers on the party something of a privileged status, arising from that necessity. As a complement, it also narrowly and necessarily circumscribes the universe of potential additional plaintiffs to one potential plaintiff, something of major concern under Jarmie and any analysis based on that case.
One of the issues of concern in Jarmie is the ability to identify potential victims--individually or as a member of a defined class, 306 Conn. at 592-93. The court believes that this factor is equivocal in this situation. With an individual with psychiatric/psychological problems who is fixated or obsessed with a particular individual or a defined group of individuals, the potential plaintiffs or class of potential plaintiffs is reasonably well-defined. Here, because of fluidity of relationships, the scope of potential plaintiffs would depend upon how narrowly or broadly the claimed cause of action is framed. Is the class of potential plaintiffs to be determined by actual identification (by name), or more generically as sexual partner(s)? (This might be framed as the distinction between identified and identifiable.) Refined somewhat, is it to be determined by mere dating with the possibility of an eventual sexual relationship, or does it require something more advanced (more " serious")?
If the requirement were that a prospective plaintiff be identified rather than identifiable, how specific must that identification be? Would it be sufficient for Mr. Smith to refer to her as his current long-term girlfriend or would the name be required? What if Mr. Smith were dating two women more or less simultaneously? Or if, between the time of the blood draw and the report, he began dating a new woman (who might or might not have had the same concern)? In a sense, plaintiff's complaint identifies a best-case scenario, but for purposes of recognition of a new cause of action or extension of an existing cause of action, the court must consider the existence of boundaries, and how not-so-ideal scenarios might be treated (assuming they can be distinguished in a rational way).
Would it be realistic to expect a physician to keep accurate records of the names of girlfriends/boyfriends of patients?
There is an overlay, especially if the benchmark is identifiable. If the class of identifiable potential plaintiffs is to be determined by those with whom the patient already has a relationship of some sort (but not yet sexual), does it have to be more than a planned first date? Must there be mutual promises of testing? Must there be mutual follow-through?
Foreseeability is a recognized issue/consideration, and the claim here satisfies that threshold inquiry. As noted in Jarmie and Lawrence v. O& G, supra, foreseeability is a crude filter in the sense that it is over-inclusive--foreseeability is a necessary but not sufficient condition for liability. Certainly it is foreseeable that a sexual partner of a patient who erroneously had been told that he did not suffer from any STDs might contract the STD with all of the health-related consequences of such an illness.
Another consideration is whether the recognition of the cause of action would or might have the effect of compromising a physician's duty to the intended patient. The claim here is that an egregious mistake was made; but in a closer case, would the physician have an affirmative obligation to seek out the potential sexual partner to explain any uncertainties or ambiguities in the test results?
According to ¶ 12 of the complaint, the lab results were given to the doctor with a guide, explaining the significance of various ranges of results. An identified range of results is indicated to be " equivocal." To what extent would there be a requirement to reach out and explain the meaning and consequences of an equivocal test result?
Presumptively, the physician does not have the right to share the patient's test results with the sexual partner, yet the physician is potentially liable for indirect sharing of that information (and the physician has no control over that indirect communication of test results). If the physician cannot communicate directly with the partner, is the physician to be subject to liability based on possibly incomplete or misunderstood communications of test results, without any ability to prevent such situations from arising? Note that there are multiple levels of possible miscommunication (beyond a mistake by the physician)--the patient misunderstanding what the doctor said, the patient miscommunicating the results to the partner, and the partner misunderstanding the results as reported by the patient.
What if the patient changes his/her mind about disclosing the results to the sexual partner, especially if that change is a consequence of a positive test? If a duty has been created, running from the physician to the patient's partner, how can the physician comply with that duty if the patient refuses to allow disclosure or indeed if the patient actually chooses to give misinformation to the partner?
In Jarmie, the court considered secondary effects that might flow from recognition of liability. Would physicians feel compelled to inquire about sexual partners whenever STD tests were being performed for a patient, in order to ascertain the universe of potentially-affected parties? Would physicians be forced to choose between giving appropriate care to the patient while potentially assuming a new liability, and declining to provide an appropriate test out of concern about such an unknown potential liability? Would physicians be allowed to ask patients to sign a waiver/disclaimer relating to any potential sexual partners who might be claimed to be intended beneficiaries of testing--or a disclosure of all such actual or potential partners?
Further, the court cannot ignore the realities of litigation and the realities of dating and sexual liaisons. Under current guidelines, non-medical-malpractice tort claims are expected to take approximately a year and a half from filing to trial, medical malpractice cases are expected to take significantly longer. Commencement of a lawsuit often is not until a year or more after the underlying event(s), such that the time from the alleged commission of the tort to the trial can easily be 2-3 years or longer. The court is not privy to statistics on the subject, and the court will not undertake any informal research on the topic, but " common sense" suggests that many if not most dating-type relationships last only a fraction of that period of time. The problem, then, arises from the issue of proof by the time a matter is put into suit and then reached for trial, there is a very substantial possibility if not probability that the patient will no longer be in a relationship with the plaintiff (sexual partner at the time of testing). In order to prove her/his case, the plaintiff would be required to produce and present evidence relating to the patient's medical treatment and sexual history, i.e. the medical and sexual history of someone who no longer has any reason to cooperate and may well be alienated/adversarial and who may well refuse to consent to disclosure of personal and confidential information. By commencing a lawsuit, a plaintiff waives claims of confidentiality relating to his/her own medical records pertaining to the lawsuit, but the actual patient of the physician is not a party (at least not necessarily so) and therefore state and federal laws (e.g. HIPAA; General Statutes § 52-146o) pertaining to confidentiality likely would bar presentation of potentially-essential evidence. Compare, Peeler v. Commissioner of Correction, 161 Conn.App. 434, 461-64, 127 A.3d 1096 (2015), discussing importance of preserving confidentiality of medical-type records of criminal-trial-witness and the applicable procedures relating to review and admissibility of non-consenting patient's medical/psychiatric records, balancing the right of an accused to confront his accusers with the witness-patient's right to confidentiality of records. If a criminal trial must defer to a claim of confidentiality of medical records, it is hard to envision a basis for a civil proceeding to be any less deferential.
Some of the records were already in the possession of the party seeking their admission, see, e.g. 161 Conn.App. at 462, but that created an additional issue of authentication. Note that the balancing of interests described in the decision gives greater weight to the privacy interest, if the records are sufficiently important for proper cross examination of the witness but the witness-patient declines to provide consent, the testimony of the witness may be required to be stricken.
Additional issues necessarily would arise in determining the scope of a cause of action such as proposed by the plaintiff. If an agreement for mutual testing is required, how formal or precise would the agreement to undergo mutual tests need to be? Is there a rationale for conditioning the physician's duty to the third party on conduct unrelated to what the physician is doing, i.e. why should the plaintiff getting an STD test from her physician be a precondition for the defendant's liability? But if there is no such limitation, then the claimed liability would extend to all identified (or identifiable) sexual partners of any patient undergoing STD (or other communicable disease) testing.
The ability of a plaintiff to prove her case might be affected by whether there had been a roughly contemporaneous test demonstrating that she had not had any STD prior to her relationship with the patient, but the ability to prove causation is not the same as a precondition for a cause of action.
There also would likely be an increase in litigation The court has no way of knowing how often such errors occur, but the patient is unlikely to have any compensable injuries from such a mistake, as he/she already had the STD and the only harm resulting would appear to be a possible delay in obtaining treatment. A new class of non-patient claimants would be recognized, and the scope of that class would depend on how narrowly or broadly the cause of action is defined.
In Jarmie, the court recognized a concern about whether someone receiving a warning would follow through in an appropriate manner, and a somewhat analogous (secondary) concern already has been mentioned--is the liability of the physician to depend on the accuracy or completeness of the information conveyed (second-hand ) by the patient to his/her partner?
Deterrence is also a consideration. Increased potential liability may spur physicians to take greater care in reporting lab results, assuming that they were not already sufficiently motivated to do so. However, that leads to consideration of unintended consequences--to the extent that physicians may often rely upon nurses or other non-M.D. practitioners to report lab results to patients, there may be a perceived need to shift towards less efficient/more expensive direct communications between the physician and patient when third-party liability may result from inaccurately-conveyed or inaccurately-understood lab results. Physicians may well be incentivized to create mechanisms to protect against such unknown third-party claims, particularly if the right is broadly applied/interpreted, i.e. if there is no requirement of specific recitation of the existence (and name?) of the sexual partner whose welfare is of concern.
One factor that appears to mildly favor recognition is the absence of any other source of compensation for the harm, e.g. existing tort claims or insurance coverage (although the cost of medical treatment likely would be covered by health insurance, when available).
After extensive discussion of considerations similar to the ones above, the Jarmie court focused on what it called " specific factors, " 306 Conn. at 603:
We have articulated four specific factors to be considered in determining the extent of a legal duty as a matter of public policy. These are: " (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.
See, also, Lawrence v. O and G Industries, Inc., 319 Conn. 641, 650, 126 A.3d 569 (2015), discussing the elements to be considered in determining whether to recognize a new cause of action.
The court immediately addressed the baseline " Starting with the expectations of the parties, long established common-law principles hold that physicians owe a duty to their patients because of their special relationship, not to third persons with whom they have no relationship." 306 Conn. at 604.
The court then addressed concerns about the impact of liability on the patient-doctor relationship. 306 Conn. at 605-06. This court already has discussed concerns that come within the scope of this factor, such as if/when the patient has " second thoughts" about revealing his actual condition to his partner. Also already discussed are concerns about patient confidentiality, both at the time of the test and in litigation should it ensue. Can a physician be expected to parse his duty to such a non-patient--a duty to disclose that the patient tested positive (indirectly, since there is no basis for allowing direct communication) but without any correlative duty or ability to advise the partner what to do (with recommendations depending on such factors as whether the patient-and-partner had been sexually active already)?
The court considered the impact on litigation. In language applicable here, the Jarmie court expressed its concern that
[t]he proposed duty also would result in increased litigation because it would open the door to an entirely new category of claims against health care providers, not only in the present context, but in the context of other treatment decisions that might indirectly cause injury to third parties, thereby greatly expanding the liability of health care providers and creating an additional burden on the courts. This would have the effect of driving up health care costs because the additional expenses incurred in defending against lawsuits very likely would be passed on to patients. 306 Conn. at 614.
In connection with litigation, the Jarmie court expressed concern about the time and effort needed to deal with litigation, e.g. discovery compliance, 306 Conn. at 615. While all litigation has " overhead" associated with discovery compliance, as noted earlier, this case has the unusual factor of seemingly requiring disclosure of a non-party's medical records and sexual history, potentially in a non-consensual context (especially if the relationship between patient and partner has terminated). Would a physician be able to argue/testify that he gave correct information to the patient, without first getting the patient's consent? Indeed, could the physician even testify that he treated the patient, or performed a test, without such consent?
This is potentially a lose-lose proposition. If the patient and plaintiff still have a relationship at the time of trial, there would be no incentive for the patient to consent to disclosure if it might have an adverse impact on the plaintiff's claim, but if the relationship had terminated, there would be no incentive for the patient to allow his past sexual history to be part of a public proceeding (trial).
The final factor is the approach taken in other jurisdictions. The plaintiff acknowledges that there is essentially no authority for this type of claim, and that it is a case of first impression. (#123.00 at p. 16.) She then goes on to cite cases in which the identifiability of potential third-party (non-patient) victims resulted in judicial recognition of a cause of action against a health care provider.
In Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), the California Supreme Court ruled that a psychotherapist owed a duty to warn a foreseeable victim of the violent and bizarre behavior of the psychotherapist's patient based on the patient's specific threat against a specific victim. (#123.00 at p. 17.)
The plaintiff notes, in a footnote, that the California legislature reined this decision in, suggesting that that body had issues with the extent to which the decision comported with the legislature's perception of public policy. More important, the plaintiff does not note the at-best lukewarm approach taken by the Connecticut Supreme Court in discussing Tarasoff --the court noted that some states have rejected it entirely, while others have restricted applicability to identified victims, before concluding that under either approach, it would be inapplicable to the case before it. Fraser v. United States, 236 Conn. 625, 635-36, 674 A.2d 811 (1996). This court's characterization of " lukewarm" is based on the fact that the Jarmie court indicated that Fraser was the only time it had " contemplated " (emphasis in original) recognition of such an extension of duty to a non-patient, 306 Conn. 578, 593, 50 A.3d 802 (2012).
The court believes that the plaintiff has not addressed highly-distinguishing characteristics of this case. First, this case does not involve a potential plaintiff/victim with no ability to protect herself and without any ability to determine the existence of the risk to her safety, as in a Fraser/Tarasoff situation. Certainly, more knowledge would help focus the decision-making process, but self-protective measures are available without regard to additional detailed knowledge. Also, the psychotherapist context inherently is limited to seriously aberrant behavior which presumably is encountered rarely. Additionally, the psychotherapist scenario recognizes a duty directly from the healthcare provider to the potential victim--which in this case would mean that a physician has (or at least might have) the duty to inform the patient's partner directly of any positive, or possibly-positive, test result. The net result is that a principle that might be applicable to emergency-type situations involving serious risk to an unsuspecting victim without any ability to protect herself from the risk would become a routine obligation associated with STD testing, and indeed arguably an obligation associated with any diagnostic testing relating to communicable diseases. (And, as earlier noted, does that then create an obligation on the part of the physician to give advice to the partner concerning her preventive and treatment options? Does it obligate the physician to notify the partner directly as to the test results? Does it compel creation of a new (if limited in scope) patient-physician relationship?)
The plaintiff then goes on to discuss another case.
In Duvall v. Goldin, 139 Mich.App. 342, 362 N.W.2d 275 (1984), the Michigan Court of Appeals found that " it is foreseeable that a doctor's failure to diagnose or properly treat an epileptic condition may create a risk of harm to a third party."
The scenario is virtually indistinguishable from Jarmie, insofar as both involve medical conditions that arguably made it unsafe for the patient to drive, creating a risk of injury for other persons on the road. The court finds this case to be of no positive value in predicting how Connecticut courts will or should respond to the claim advanced here--to the extent that the factual scenario is different, it provides no meaningful guidance, and to the extent the facts are similar, it indicates a negative outcome.
In sum, few of the factors that need to be considered favor recognition of a cause of action, none of them are especially weighty. The court is particularly troubled by the likely inability to draw any lines that might be meaningful in terms of identifying the parameters of a permissible cause of action, compounded by the practical (and medical-ethical) problems that would be created, including forced reliance on a non-disinterested party (the patient) to act as intermediary in communicating the results, with no ability to ensure an accurate and complete report, no ability to counsel the partner as to proper precautions/treatment, etc.
The court believes that the Jarmie -mandated analysis of the scenario presented in this case provides an inadequate basis for the court to conclude that the plaintiff has asserted a legally-sufficient (cognizable) cause of action.
Conclusion
Jarmie mandates a default position that physicians have a duty to their patients rather than third parties, and the defendant asks the court to adhere to that position. While narrow exceptions may be recognized, the plaintiff has not established, and the court has not otherwise concluded, that this scenario--however sympathetic--is (should be) such an exception.
For all these reasons, then, the motion to strike is granted.