Monday, July 15, 2019

Doctor May Be Liable To Third Party After Blown STD Diagnosis

The Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after he had mistakenly informed the patient he was free of infection

The principal issue in this appeal is whether a physician who mistakenly informs a patient that he does not have a sexually transmitted disease (STD) may be held liable in ordinary negligence to the patient’s exclusive sexual partner for her resulting injuries when the physician knows that the patient sought testing and treatment for the express benefit of that partner. Under the circumstances alleged, we conclude that the defendant, Charles Cochran, a physician, owed a duty of care to the plaintiff, identified by the pseudonym Jane Doe, even though she was not his patient.

Accordingly, we conclude that the trial court improperly granted the defendant’s motion to strike the plaintiff’s one count complaint and reverse the judgment of the trial court.

The claim alleges that the couple was dating but not yet intimate

At some point, the couple agreed that, before their relationship became sexual, they would individually seek testing for STDs. As of July, 2013, the plaintiff had tested negative for and did not have any STDs.

Sex then began

The plaintiff’s relationship with Smith subsequently became sexual. Thereafter, the plaintiff began to experience herpes outbreaks and was diagnosed with herpes. Upon learning of this, Smith contacted the defendant to inquire further about his test results. The defendant then informed Smith that he actually had tested positive for herpes and apologized for the error.

A dissent

I conclude, consistent with Jarmie v. Troncale, supra, 306 Conn. 578, that the defendant did not owe the plaintiff, who was not his patient, a duty of care in the present case. Given the potential ramifications of recognizing such an expanded duty of care, I would leave that potential expansion of liability to the legislature—which is better equipped than this court to make the public policy findings attendant to that expansion of liability.9 See, e.g., State v. Lockhart, 298 Conn. 537, 574–75, 4 A.3d 1176 (2010) (declining to require recording of custodial interrogations and deferring to legislature because ‘‘it is in a better position to evaluate the competing policy interests at play in developing a recording requirement in that it can invite comment from law enforcement agencies, prosecutors and defense attorneys regarding the relevant policy considerations and the practical challenges of implementing a recording mandate’’). Accordingly, I conclude that the trial court properly granted the defendant’s motion to strike.

(Mike Frisch)

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