Liability to Non-Patients: Recent Decisions Offer Guidance

Before turning to the recent decisions on the subject, a review of the pertinent prior decisions of New York's highest state court, the Court of Appeals, is warranted.

In Eiseman v. State of New York, 70 N.Y.2d 175 (1987), the court held that a prison physician could not be held liable for failing to properly indicate an inmate's psychiatric history on a health report for a college admission program. After being accepted to the school, the inmate attacked, raped and murdered several students he had befriended. The court found that the physician owed no duty to the community at large, but did owe a duty to his patient “and to persons who he knew or reasonably should have known were relying on him for this service to his patient.” However, since there was no evidence that the physician knew or should have known that his report would be relied on by the students, no duty was owed in that case.

In Purdy v. Pub. Admin. of Westchester County, 72 N.Y.2d 1 (1988), the court held that a plaintiff injured by a woman who blacked out while driving a car could not recover from the nursing home where she was a voluntary resident, or from the admitting physician, because they were under no duty to prevent the patient from driving off premises or to warn her that her medical condition impaired her ability to drive. The court noted that a duty to control others may be imposed where there exists a “special relationship” between the defendant and the person to be controlled or between the defendant and the plaintiff. In Purdy , the court found, the relationship between the defendants and the driver was insufficient to impose liability because she was a voluntary resident over whom they had no control.

The court found a duty of care to a non-patient in Tenuto v. Lederle Laboratories, 90 N.Y.2d 606 (1997), where a pediatric patient's father contracted polio from a vaccine administered by the defendant doctor to the patient. It found a special relationship between the doctor, the patient and the parents, which gave rise to a duty to warn the parents of the risk and of precautions to prevent transmission of the disease.

In Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639 (2000), the court found that no duty was owed to the wife of a male patient on whom a fertility enhancement procedure was performed, which had the opposite effect. It distinguished several Appellate Division cases that permitted liability to a patient's wife for physical injuries she sustained from an unwanted pregnancy after a negligently performed vasectomy. See Miller v. Rivard, 180 A.D.2d 331 (3d Dept. 1992); Weintraub v. Brown , 98 A.D.2d 339 (2d Dept. 1983); Sorkin v. Lee, 78 A.D.2d 180 (4th Dept. 1980).

Finally, in McNulty v. City of New York, 100 N.Y.2d 227 (2003), the plaintiff, a nurse who assisted a friend who had meningitis, alleged that the defendant doctors and hospitals were aware of her contact with the patient and should have advised her to obtain prophylactic treatment. The court held that none of the health care providers owed her any duty. It noted that a duty has been found to exist to a non-patient where the injury arose from the treatment of the patient, and that the defendants in this case had never met the plaintiff until she approached them. The court further noted that while various statutes protect against exposure to communicable diseases, the plaintiff did not appeal the Appellate Division's ruling that those statutes do not allow for a private cause of action.

Categories of Claims

The recent cases (since 2005) addressing the issue have generally fallen into two categories: 1) claims for failures to prevent patients from causing injuries to others; and 2) claims by non-patients exposed to patients with contagious diseases. Before turning to the cases in those categories, we discuss one which falls into neither.

In Klein v. Bailer, 72 A.D.3d 744 (2d Dept. 2010), the plaintiffs brought their daughter, who was born with congenital problems, for genetic evaluation. Testing for certain genetic conditions was negative, but the geneticist recommended a follow-up in three months. The child also came under the care of various physicians, one of whom suggested in a letter that she might have a rare genetic disorder. The letter was not given to the parents, but they were advised to follow up with the geneticist. The parents never followed up, and the next year had a second child with birth defects, who was diagnosed with the disorder mentioned in the letter. The first child and the father were both subsequently diagnosed with the same disorder. The parents brought suit against the geneticist and the child's treating physicians, seeking recovery for their extraordinary expenses in caring for their second child.

The court held that there could be no recovery because the doctors treating the first child owed no duty to the parents. It found no special relationship, noting that they did not rely on the advice to follow up with the geneticist, and the absence of evidence that they sought counseling for future pregnancies. The court also noted that the defendants' failure to warn the parents did not arise from their treatment of the infant, and that there was no evidence that they knew or should have known that the mother would become pregnant again.

1. Claims for Failing to Prevent Patients from Causing Injury to Others: New York's recent cases involving claims for failing to prevent patients from causing injuries to others are all from the Appellate Division, Second Department, and all but one involved patients with psychiatric conditions. In Engelhart v. County of Orange, 16 A.D.3d 369 (2d Dept. 2005), a patient of the defendant psychiatrist drove an automobile on a pedestrian pathway and killed the plaintiff's decedent. The previous night, the defendant determined during a telephone call with the patient's wife that he needed to be involuntarily hospitalized and instructed her to call the police. She did not do that. The court found that under the circumstances, the psychiatrist owed no legal duty of care because he had no control over the patient. That the determination of the need for hospitalization was made during a telephone call rather than at an office visit was apparently decisive in demonstrating no opportunity to control.

Similarly, in Citera v. County of Suffolk, 95 A.D.3d 1255 (2d Dept. 2012), where a man receiving outpatient psychiatric care murdered his mother, the court dismissed an action brought by the patient's half-sibling against the mental health-care provider. The court found that there was no duty of care because: 1) the provider had no authority or ability to control the patient to give rise to a duty to protect the decedent as a member of the public; and 2) there was no relationship between the provider and the decedent to create a duty of care to the decedent.

Conversely, in Stewart v. Brookdale Univ. Hosp. and Med. Ctr., 62 A.D.3d 860 (2d Dept. 2009), the court found an issue of fact as to whether the hospital committed malpractice by discharging a psychiatric patient, who apparently then killed his parent. While the decision provides little discussion, the result suggests there was evidence that the defendant had control over the patient and that the discharge deviated from the standard of care.

In a similar scenario, in Fox v. Marshall, 88 A.D.3d 131 (2d Dept. 2011), the same court held that there could be recovery for negligence but not for malpractice. The patient in that case was a voluntary resident of a substance abuse and mental health facility, but was required to give 30 days' written notice before quitting the program. After being given a pass to leave the facility to visit his mother, along with the keys to his car, he bought cocaine, drove his car into a jogger and then murdered his mother's neighbor and dismembered her body. The court held that the facility and its employees, including a psychiatrist, could be held liable for negligence because it had “a certain level of authority and control” over the patient, as demonstrated by the fact that he needed a pass to visit his mother. However, it found no cause of action for medical malpractice because there was no provider-patient relationship, and the duty of care to the patient does not extend to the public at large.

Most recently, in Davis v. South Nassau Comm. Hosp., 119 A.D.3d 512 (2d Dept. 2014), the Second Department addressed a circumstance similar to that involved in Purdy. After being seen for abdominal pain, the patient was discharged with pain medications. Shortly thereafter, the patient became unconscious while driving her car, and drove into a bus operated by the plaintiff. The plaintiff sued for medical malpractice. The defendants moved to dismiss pursuant to CPLR 3211(a)(7), and the plaintiff cross-moved to assert a cause of action for negligence. The court found that the complaint failed to state a cause of action for medical malpractice because the defendants owed no duty of care to the bus driver. It further found that the cross-motion to add a negligence cause of action was properly denied because the proposed amended complaint failed to allege that the defendants had sufficient authority and ability to control the patient.

The above cases indicate that where a health care provider has the ability or opportunity to control a patient who requires control, yet fails to do so, an action brought by someone injured by the patient should lie, at least for simple negligence. It is not clear what circumstances existed in Stewart to support a medical malpractice action. It is possible that there was a special relationship based on communications between the parent and the health care provider, but that is not specified in the decision. Regardless, the nature of the cause of action is less important than the ability to bring one, and the above cases demonstrate that there are significant impediments to bringing such an action.

2. Contagious Diseases: The recent cases involving exposure to patients with contagious diseases likewise demonstrate the challenges faced by non-patients bringing such claims.

In Candelario v. Teperman, 15 A.D.3d 204 (1st Dept. 2005), the court dismissed a claim by a plaintiff who contracted hepatitis C from her mother, who was treated for the disease at the defendant hospital for two years before she died from it. Several times during that treatment, the patient was released from the hospital and was cared for by the plaintiff at her home. The plaintiff claimed that she came in contact with her mother's bodily fluids, which were capable of transmitting the virus that caused the disease. Several years after her mother's death, the plaintiff was diagnosed with hepatitis C. She brought suit, claiming that the defendants were aware that she was caring for her mother and failed to warn her of the contagious nature of the disease and of precautions to take to prevent transmission. The First Department dismissed the case on authority of McNulty, finding that there was no indication that the defendants' treatment of the patient is what caused the plaintiff to become infected. The court found that McNulty was not distinguishable on the ground that the plaintiff was a family member, and that the result could not be avoided by characterizing the action as ordinary negligence rather than malpractice. It further found that provisions of the State Sanitary Code applicable to communicable diseases do not provide a private right of action.

The Appellate Division, Fourth Department, found that a similar claim could proceed against one defendant but not against several others in Herrgesell v. Genesee Hosp., 45 A.D.3d 1488 (4th Dept. 2007). The plaintiff's decedent in that case allegedly contracted hepatitis B while living with and caring for her father, who had the disease. The court found issues of fact as to whether one of the doctors was aware that the decedent was at risk of contracting hepatitis, citing testimony that this doctor was asked whether the caregiver daughter should be vaccinated and that he responded that it was not necessary. The claims against all other defendants were dismissed under McNulty . The court also concurred with the First Department's determination in Candelario that the Sanitary Code did not establish a private right of action.

In Spina v. Jack D. Weiler Hosp. of the Albert Einstein College of Medicine, 28 A.D.3d 311 (1st Dept. 2006), the court dismissed an action brought by a plaintiff who claimed that while visiting her mother in the hospital she contracted tuberculosis from another patient. She alleged that the defendants negligently permitted patients and visitors to be exposed to the disease. The First Department found that no duty of care was owed because the plaintiff did not allege that her injury was caused by treatment provided to the patient who had tuberculosis, but rather that the defendants negligently failed to warn patients and visitors and failed to timely isolate the tuberculosis patient.

This seems like a narrow interpretation of the McNulty requirement that the injury to the non-patient arise from the treatment of the patient, since the infected patient was being treated for tuberculosis. The fact pattern also raises the question of why the cases premised upon control of a patient do not apply to give rise to a duty on the hospital to take reasonable precautions to prevent a contagious patient from infecting others. The same type of duty that requires a hospital to protect people from psychiatric patients known to be dangerous should likewise require them to protect people from patients known to be contagious.

Conclusion

These recent cases demonstrate the difficulty faced when attempting to hold health care providers liable to non-patients. As observed in McNulty , there is a reluctance to expand the duty owed to non-patients borne of concern “that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs.” In this light, it is unlikely the Ebola hypothetical suggested at the outset of this article would result in health care providers being liable under New York law.

Matthew Gaier and Thomas A. Moore are Partners at Kramer, Dillof, Livingston & Moore (KDL&M), New York. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Although, generally, there must be a physician-patient or a hospital-patient relationship for a legal duty of care to exist upon which liability may be founded, in some situations, health care providers may be held liable to someone other than a patient. See Moore and Gaier, “A Doctor's Liability to a Non-Patient,” NYLJ Feb. 3, 1998, p. 3; Moore and Gaier, “Recent Decisions on Physician Liability to Nonpatients,” NYLJ Oct. 3, 2000, p. 3; Moore and Gaier, “Recent Decisions on Liability to Non-Patients,” NYLJ June 3, 2003, p. 3. This issue may currently be of particular interest in view of recent incidents involving the Ebola virus in this country. For instance, the news reports from Texas of a symptomatic patient being discharged from an emergency room after he reported he recently returned from a West African country highlights the potential impact that medical negligence can have on non-patients. Fortunately, no one with whom that patient came in contact after his discharge contracted the virus. But what if they had? Can a hospital be held liable to people who were not its patients, but who nevertheless become sick as a result of mistakes in treating a patient?

The answer to this question lies in the cases analyzing whether health care providers may be held liable to non-patients. This article looks at such case law in New York.

Court of Appeals Cases

Before turning to the recent decisions on the subject, a review of the pertinent prior decisions of New York's highest state court, the Court of Appeals, is warranted.

In Eiseman v. State of New York , 70 N.Y.2d 175 (1987), the court held that a prison physician could not be held liable for failing to properly indicate an inmate's psychiatric history on a health report for a college admission program. After being accepted to the school, the inmate attacked, raped and murdered several students he had befriended. The court found that the physician owed no duty to the community at large, but did owe a duty to his patient “and to persons who he knew or reasonably should have known were relying on him for this service to his patient.” However, since there was no evidence that the physician knew or should have known that his report would be relied on by the students, no duty was owed in that case.

In Purdy v. Pub. Admin. of Westchester County , 72 N.Y.2d 1 (1988), the court held that a plaintiff injured by a woman who blacked out while driving a car could not recover from the nursing home where she was a voluntary resident, or from the admitting physician, because they were under no duty to prevent the patient from driving off premises or to warn her that her medical condition impaired her ability to drive. The court noted that a duty to control others may be imposed where there exists a “special relationship” between the defendant and the person to be controlled or between the defendant and the plaintiff. In Purdy , the court found, the relationship between the defendants and the driver was insufficient to impose liability because she was a voluntary resident over whom they had no control.

The court found a duty of care to a non-patient in Tenuto v. Lederle Laboratories , 90 N.Y.2d 606 (1997), where a pediatric patient's father contracted polio from a vaccine administered by the defendant doctor to the patient. It found a special relationship between the doctor, the patient and the parents, which gave rise to a duty to warn the parents of the risk and of precautions to prevent transmission of the disease.

In Cohen v. Cabrini Med. Ctr. , 94 N.Y.2d 639 (2000), the court found that no duty was owed to the wife of a male patient on whom a fertility enhancement procedure was performed, which had the opposite effect. It distinguished several Appellate Division cases that permitted liability to a patient's wife for physical injuries she sustained from an unwanted pregnancy after a negligently performed vasectomy. See Miller v. Rivard , 180 A.D.2d 331 (3d Dept. 1992); Weintraub v. Brown , 98 A.D.2d 339 (2d Dept. 1983); Sorkin v. Lee , 78 A.D.2d 180 (4th Dept. 1980).

Finally, in McNulty v. City of New York , 100 N.Y.2d 227 (2003), the plaintiff, a nurse who assisted a friend who had meningitis, alleged that the defendant doctors and hospitals were aware of her contact with the patient and should have advised her to obtain prophylactic treatment. The court held that none of the health care providers owed her any duty. It noted that a duty has been found to exist to a non-patient where the injury arose from the treatment of the patient, and that the defendants in this case had never met the plaintiff until she approached them. The court further noted that while various statutes protect against exposure to communicable diseases, the plaintiff did not appeal the Appellate Division's ruling that those statutes do not allow for a private cause of action.

Categories of Claims

The recent cases (since 2005) addressing the issue have generally fallen into two categories: 1) claims for failures to prevent patients from causing injuries to others; and 2) claims by non-patients exposed to patients with contagious diseases. Before turning to the cases in those categories, we discuss one which falls into neither.

In Klein v. Bailer , 72 A.D.3d 744 (2d Dept. 2010), the plaintiffs brought their daughter, who was born with congenital problems, for genetic evaluation. Testing for certain genetic conditions was negative, but the geneticist recommended a follow-up in three months. The child also came under the care of various physicians, one of whom suggested in a letter that she might have a rare genetic disorder. The letter was not given to the parents, but they were advised to follow up with the geneticist. The parents never followed up, and the next year had a second child with birth defects, who was diagnosed with the disorder mentioned in the letter. The first child and the father were both subsequently diagnosed with the same disorder. The parents brought suit against the geneticist and the child's treating physicians, seeking recovery for their extraordinary expenses in caring for their second child.

The court held that there could be no recovery because the doctors treating the first child owed no duty to the parents. It found no special relationship, noting that they did not rely on the advice to follow up with the geneticist, and the absence of evidence that they sought counseling for future pregnancies. The court also noted that the defendants' failure to warn the parents did not arise from their treatment of the infant, and that there was no evidence that they knew or should have known that the mother would become pregnant again.

1. Claims for Failing to Prevent Patients from Causing Injury to Others: New York's recent cases involving claims for failing to prevent patients from causing injuries to others are all from the Appellate Division, Second Department, and all but one involved patients with psychiatric conditions. In Engelhart v. County of Orange , 16 A.D.3d 369 (2d Dept. 2005), a patient of the defendant psychiatrist drove an automobile on a pedestrian pathway and killed the plaintiff's decedent. The previous night, the defendant determined during a telephone call with the patient's wife that he needed to be involuntarily hospitalized and instructed her to call the police. She did not do that. The court found that under the circumstances, the psychiatrist owed no legal duty of care because he had no control over the patient. That the determination of the need for hospitalization was made during a telephone call rather than at an office visit was apparently decisive in demonstrating no opportunity to control.

Similarly, in Citera v. County of Suffolk , 95 A.D.3d 1255 (2d Dept. 2012), where a man receiving outpatient psychiatric care murdered his mother, the court dismissed an action brought by the patient's half-sibling against the mental health-care provider. The court found that there was no duty of care because: 1) the provider had no authority or ability to control the patient to give rise to a duty to protect the decedent as a member of the public; and 2) there was no relationship between the provider and the decedent to create a duty of care to the decedent.

Conversely, in Stewart v. Brookdale Univ. Hosp. and Med. Ctr. , 62 A.D.3d 860 (2d Dept. 2009), the court found an issue of fact as to whether the hospital committed malpractice by discharging a psychiatric patient, who apparently then killed his parent. While the decision provides little discussion, the result suggests there was evidence that the defendant had control over the patient and that the discharge deviated from the standard of care.

In a similar scenario, in Fox v. Marshall , 88 A.D.3d 131 (2d Dept. 2011), the same court held that there could be recovery for negligence but not for malpractice. The patient in that case was a voluntary resident of a substance abuse and mental health facility, but was required to give 30 days' written notice before quitting the program. After being given a pass to leave the facility to visit his mother, along with the keys to his car, he bought cocaine, drove his car into a jogger and then murdered his mother's neighbor and dismembered her body. The court held that the facility and its employees, including a psychiatrist, could be held liable for negligence because it had “a certain level of authority and control” over the patient, as demonstrated by the fact that he needed a pass to visit his mother. However, it found no cause of action for medical malpractice because there was no provider-patient relationship, and the duty of care to the patient does not extend to the public at large.

Most recently, in Davis v. South Nassau Comm. Hosp. , 119 A.D.3d 512 (2d Dept. 2014), the Second Department addressed a circumstance similar to that involved in Purdy. After being seen for abdominal pain, the patient was discharged with pain medications. Shortly thereafter, the patient became unconscious while driving her car, and drove into a bus operated by the plaintiff. The plaintiff sued for medical malpractice. The defendants moved to dismiss pursuant to CPLR 3211(a)(7), and the plaintiff cross-moved to assert a cause of action for negligence. The court found that the complaint failed to state a cause of action for medical malpractice because the defendants owed no duty of care to the bus driver. It further found that the cross-motion to add a negligence cause of action was properly denied because the proposed amended complaint failed to allege that the defendants had sufficient authority and ability to control the patient.

The above cases indicate that where a health care provider has the ability or opportunity to control a patient who requires control, yet fails to do so, an action brought by someone injured by the patient should lie, at least for simple negligence. It is not clear what circumstances existed in Stewart to support a medical malpractice action. It is possible that there was a special relationship based on communications between the parent and the health care provider, but that is not specified in the decision. Regardless, the nature of the cause of action is less important than the ability to bring one, and the above cases demonstrate that there are significant impediments to bringing such an action.

2. Contagious Diseases: The recent cases involving exposure to patients with contagious diseases likewise demonstrate the challenges faced by non-patients bringing such claims.

In Candelario v. Teperman , 15 A.D.3d 204 (1st Dept. 2005), the court dismissed a claim by a plaintiff who contracted hepatitis C from her mother, who was treated for the disease at the defendant hospital for two years before she died from it. Several times during that treatment, the patient was released from the hospital and was cared for by the plaintiff at her home. The plaintiff claimed that she came in contact with her mother's bodily fluids, which were capable of transmitting the virus that caused the disease. Several years after her mother's death, the plaintiff was diagnosed with hepatitis C. She brought suit, claiming that the defendants were aware that she was caring for her mother and failed to warn her of the contagious nature of the disease and of precautions to take to prevent transmission. The First Department dismissed the case on authority of McNulty, finding that there was no indication that the defendants' treatment of the patient is what caused the plaintiff to become infected. The court found that McNulty was not distinguishable on the ground that the plaintiff was a family member, and that the result could not be avoided by characterizing the action as ordinary negligence rather than malpractice. It further found that provisions of the State Sanitary Code applicable to communicable diseases do not provide a private right of action.

The Appellate Division, Fourth Department, found that a similar claim could proceed against one defendant but not against several others in Herrgesell v. Genesee Hosp. , 45 A.D.3d 1488 (4th Dept. 2007). The plaintiff's decedent in that case allegedly contracted hepatitis B while living with and caring for her father, who had the disease. The court found issues of fact as to whether one of the doctors was aware that the decedent was at risk of contracting hepatitis, citing testimony that this doctor was asked whether the caregiver daughter should be vaccinated and that he responded that it was not necessary. The claims against all other defendants were dismissed under McNulty . The court also concurred with the First Department's determination in Candelario that the Sanitary Code did not establish a private right of action.

In Spina v. Jack D. Weiler Hosp. of the Albert Einstein College of Medicine , 28 A.D.3d 311 (1st Dept. 2006), the court dismissed an action brought by a plaintiff who claimed that while visiting her mother in the hospital she contracted tuberculosis from another patient. She alleged that the defendants negligently permitted patients and visitors to be exposed to the disease. The First Department found that no duty of care was owed because the plaintiff did not allege that her injury was caused by treatment provided to the patient who had tuberculosis, but rather that the defendants negligently failed to warn patients and visitors and failed to timely isolate the tuberculosis patient.

This seems like a narrow interpretation of the McNulty requirement that the injury to the non-patient arise from the treatment of the patient, since the infected patient was being treated for tuberculosis. The fact pattern also raises the question of why the cases premised upon control of a patient do not apply to give rise to a duty on the hospital to take reasonable precautions to prevent a contagious patient from infecting others. The same type of duty that requires a hospital to protect people from psychiatric patients known to be dangerous should likewise require them to protect people from patients known to be contagious.

Conclusion

These recent cases demonstrate the difficulty faced when attempting to hold health care providers liable to non-patients. As observed in McNulty , there is a reluctance to expand the duty owed to non-patients borne of concern “that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs.” In this light, it is unlikely the Ebola hypothetical suggested at the outset of this article would result in health care providers being liable under New York law.

Matthew Gaier and Thomas A. Moore are Partners at Kramer, Dillof, Livingston & Moore (KDL&M), New York. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.