Doctor's duty to a third party the exception, not rule

A column analyzing the impact of recent court decisions on physicians

By Amy Sorrel amednews correspondent— Posted June 1, 2009.

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Physicians already have enough liability pressure in the patient-physician relationship without someone else looking over their shoulders.

A recent California case threatened to expand a doctor's duty to nonpatients in certain circumstances. But the California Court of Appeals decided to keep limits on physicians' liability for harm their patients cause to a third party.

Judges in an April 9 opinion in Greenberg v. Superior Court of Orange County, found that psychiatrist Laurence Greenberg, MD, owed no duty of care to Denise Smith, whose husband and daughter were shot by the doctor's patient, William Freund.

Dr. Greenberg had treated the 19-year-old for Asperger's syndrome. In October 2005, Dr. Greenberg told Freund to discontinue his current medication due to certain side effects and prescribed a new regimen of four other antidepressants. That month, Freund purchased a shotgun and posted several messages to an autism community Web site suggesting he wanted to kill himself and expressing hostilities toward his parents, legal documents show. There was no evidence Dr. Greenberg or Freund's parents were aware of these activities, court records state.

On Oct. 25, 2005, Freund visited Smith's home, shot and killed Smith's husband and daughter and then committed suicide. Smith's son, Brandon, was a close friend of Freund's.

An autopsy revealed the presence of a drug Dr. Greenberg never prescribed, court documents state. Freund also had a history of not complying with the doctor's prescription regimen, according to legal records.

Smith in November 2006 sued Dr. Greenberg for wrongful death due to medical negligence. A trial court found the physician may owe a duty to the family "even though they were strangers to the doctor-patient relationship."

Dr. Greenberg appealed, arguing he was immune under a state law protecting mental health professionals from liability for failing to predict or warn of a patient's violent behavior, unless the patient communicated to the doctor a specific threat against an identifiable victim. The appeals court agreed, finding Freund had no known motivation to hurt the Smith family.

A creative legal theory?

But Smith countered that her case was not predicated on the statute or a failure-to-warn claim. Instead, she alleged that Dr. Greenberg's negligent treatment of Freund caused him to become dangerous.

Smith asserted the doctor knew or should have known that the medications prescribed could cause violent, adverse side effects and failed to properly monitor Freund. She alleged Dr. Greenberg had a duty to treat Freund so as not to cause harm to himself or others and that he breached his duty to Smith's family by failing to treat Freund appropriately, causing the deaths of her husband and daughter.

The appeals court rejected the theory, saying it ignored Freund's preexisting mental disorder, which Dr. Greenberg did not create. In addition, Smith's argument that Dr. Greenberg caused Freund's actions "skips over the issue of ... whether [the doctor] owed plaintiffs a duty of care when making medical decisions regarding the treatment of his patient," a central element to establishing the negligence claim, the court said.

Citing precedents, judges noted that "courts have invoked the concept of duty to limit generally the otherwise potentially infinite liability which would follow from every negligent act."

That's not to say a doctor never will owe a duty to a third party, said Joel B. Douglas, Dr. Greenberg's attorney. "But it should be the exception, rather than the rule, because you don't want to invite everybody to second-guess these private, contractual relationships. And here you have a third party trying to adjudicate what a doctor should do with a patient."

Although the case centered on the realm of mental health, the appeals court cited a 1958 California Supreme Court precedent in Biakanja v. Irving that established several general principles for determining third-party liability, including:

  • Extent to which the transaction was intended to affect the plaintiff.
  • Foreseeability of harm to the plaintiff.
  • Closeness of the connection between the defendant's conduct and the alleged injury.
  • Moral blame attached to the defendant's conduct.
  • Policy of preventing future harm.

In Greenberg, the court focused on the fact that the transaction -- or in this case, the treatment -- between the defendant and the patient was not intended to affect or benefit the plaintiff in any way, Douglas noted.

In addition, Dr. Greenberg had no advance warning to be able to foresee the potential for harm to another party, the court said. Nor was there any allegation or evidence that Dr. Greenberg acted in bad faith or for reasons unrelated to necessary medical treatment.

Barry Novack, Smith's attorney, said Dr. Greenberg fell short in his duties within the patient-physician relationship, such as properly telling Freund's parents to monitor their son while on dangerous medications.

"These are obligations the doctor already has toward the patient and this [ruling] says he's not obligated to do anything ... just because [the patient] showed no signs of hostility," Novack said.

He noted it wasn't established if Dr. Greenberg knew of any impending danger as the doctor was not deposed. Court records show Freund's parents objected to the deposition and production of private records.

Smith is asking the California Supreme Court to overturn the appeals court ruling. The high court will decide whether to take the case.

Broader implications

The appeals court ruling reflects important public policy considerations, said Dean P. Nicastro, a health care lawyer with Pierce & Mandell PC in Boston. "If there is a potential victim class, it should be identifiable and not just everyone out there," said Nicastro, former general counsel to the Massachusetts Medical Society.

He pointed to a conflicting 2007 decision from Massachusetts' high court. The state's Supreme Judicial Court in Coombes v. Florio found that doctors are liable not just to patients, but also to anyone else "foreseeably" put at risk when doctors fail to warn patients about potential side effects of drugs they prescribe.

Courts tend to analyze third-party liability on a case-by-case basis. However, Nicastro said, in the mental health arena, most states, through case law or statute, require the presence of some sort of communication from the patient to the doctor of the potential for harm to a third party.

More generally, courts look for a reasonable connection between the doctor's conduct and the harm caused to the third party, or whether there was a special relationship between the two.

"If you expand [physician liability] outside of that context, you're really opening up the physician-patient relationship to external pressures that do not support quality medical care," Nicastro said. Those pressures may include the need for additional documentation, which can add time and expense to health care. Physicians also may feel pressured to unduly restrict their medical judgment or a patient's activities for fear of harm to a third party, he said.

Doctors don't deny their responsibility to warn patients or others about treatment risks when appropriate, said Douglas, Dr. Greenberg's attorney. But there are already checks in place to deter inappropriate conduct.

Indeed, judges in Greenberg, relying on court precedents, said the duty of care physicians already owe to their patients "is sufficient to deter [doctors] from committing acts of professional malpractice."

Douglas said, "physician mistakes are properly addressed and limited to the doctor-patient relationship. And it's not for third parties to insert themselves after the fact."

Amy Sorrel amednews correspondent—

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