Doe v. Cochran ( 2019 )

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DOE v. COCHRAN—DISSENT
ROBINSON, C. J., with whom McDONALD and
KAHN, J., join, dissenting. I respectfully disagree with
the majority’s conclusion that Connecticut physicians,
with respect to the diagnosis and reporting of their
patients’ sexually transmitted disease (STD) test
results, owe a direct duty of care to ‘‘identifiable third
parties who are engaged in an exclusive romantic rela-
tionship with a patient at the time of testing and, there-
fore, may foreseeably be exposed to any STD that a
physician fails to diagnose or properly report.’’ In my
view, the majority’s conclusion is inconsistent with our
recent decision in Jarmie v. Troncale, 306 Conn. 578,
590–91, 50 A.3d 802 (2012), in which we deemed three
principal considerations to be especially pertinent in
determining what, if any, duty of care is owed by a
medical professional to a nonpatient third party, specifi-
cally (1) Connecticut precedent, (2) the foreseeability of
the alleged harm, and (3) public policy considerations.
Following Jarmie, I conclude instead that the defen-
dant physician, Charles Cochran, owed no duty to the
plaintiff, Jane Doe, and that the trial court properly
granted the defendant’s motion to strike the plaintiff’s
single count complaint. Because I would affirm the judg-
ment subsequently rendered by the trial court in favor
of the defendant, I respectfully dissent.
I begin by noting my agreement with the majority’s
recitation of the factual and procedural history of the
case. I also note my substantial agreement with the
majority’s analysis in part I of its opinion, including the
standard of review and the treatment of the plaintiff’s
single count complaint as having alleged both medical
malpractice and common-law negligence, similar to our
treatment of the action in Jarmie.1 Id., 583–86. I part
ways with the majority at part II of its opinion.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Contained within the
first element, duty, there are two distinct considera-
tions. . . . First, it is necessary to determine the exis-
tence of a duty, and then, if one is found, it is necessary
to evaluate the scope of that duty. . . . The existence
of a duty is a question of law and only if such a duty
is found to exist does the trier of fact then determine
whether the defendant violated that duty in the particu-
lar situation at hand. . . . If a court determines, as a
matter of law, that a defendant owes no duty to a plain-
tiff, the plaintiff cannot recover in negligence from the
defendant. . . .
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact, and imperative
to a negligence cause of action. The nature of the duty,
and the specific persons to whom it is owed, are deter-
mined by the circumstances surrounding the conduct
of the individual. . . . Although it has been said that
no universal test for [duty] ever has been formulated
. . . our threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable
to the defendant. The ultimate test of the existence of
the duty to use care is found in the foreseeability that
harm may result if it is not exercised. . . . By that is
not meant that one charged with negligence must be
found actually to have foreseen the probability of harm
or that the particular injury which resulted was foresee-
able, but the test is, would the ordinary [person] in the
defendant’s position, knowing what he knew or should
have known, anticipate that harm of the general nature
of that suffered was likely to result . . . .
‘‘A simple conclusion that the harm to the plaintiff
was foreseeable, however, cannot by itself mandate a
determination that a legal duty exists. Many harms are
quite literally foreseeable, yet for pragmatic reasons,
no recovery is allowed. . . . A further inquiry must be
made, for we recognize that duty is not sacrosanct in
itself . . . but is only an expression of the sum total
of those considerations of policy which lead the law to
say that the plaintiff is entitled to protection. . . . The
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results.’’ (Internal quotation marks omitted.)
Id., 589–90.
In Jarmie, we considered whether to recognize a
duty of care owed by a physician to a third party nonpa-
tient. In that case, a patient crashed her vehicle into
the plaintiff after blacking out while driving. Id., 580.
The plaintiff in Jarmie claimed that the defendant, a
physician, had breached a duty to warn the patient of
the risks of a latent driving impairment associated with
a particular medical condition. Id. In concluding that
the physician did not owe a duty of care to a third
party nonpatient, this court considered three principal
factors: (1) Connecticut precedent, (2) foreseeability,
and (3) public policy considerations, including the deci-
sions of courts in other jurisdictions. Id., 589–91.
We began in Jarmie by analyzing Connecticut prece-
dent, and observed that it ‘‘is useful to view Connecticut
common-law rules defining the duty of health care pro-
viders in conjunction with [General Statutes] § 52-190a,
the medical malpractice statute, because all of the rele-
vant case law followed enactment of that provision.
The statute had several purposes, including: (1) to put
some measure of control on what was perceived as a
crisis in medical malpractice insurance rates; (2) to
discourage frivolous or baseless medical malpractice
actions; (3) to reduce the incentive to health care pro-
viders to practice unnecessary and costly defensive
medicine because of the fear of such actions; (4) to
reduce the emotional, reputational and professional toll
imposed on health care providers who are made the
targets of baseless medical malpractice actions; and (5)
the replacement of proportional liability for the preex-
isting system of joint and several liability as a central
part of [tort reform], so as to remove the health care
provider as an unduly attractive deep pocket for the
collection of all of the plaintiff’s damages. . . . Thus,
a principal goal of § 52-190a, and of tort reform gener-
ally, was to limit the potential liability of health care
providers. . . .
‘‘The common law, reflecting the goals of the tort
reform movement and the legislature’s purpose in
enacting § 52-190a, likewise disfavors the imposition of
liability on health care providers. The established rule is
that, absent a special relationship of custody or control,
there is no duty to protect a third person from the
conduct of another. . . . Thus, physicians owe an ordi-
nary duty to their patients not to harm them through
negligent conduct and an affirmative duty to help them
by providing appropriate care. . . . There is no well
established common-law rule that a physician owes a
duty to warn or advise a patient for the benefit of
another person.’’ (Citations omitted; internal quotation
marks omitted.) Id., 591–92.
‘‘Consistent with the purpose of the medical malprac-
tice statute and the limited duty of health care providers
under the common law, this court has exercised
restraint when presented with opportunities to extend
the duty of health care providers to persons who are
not their patients. As a consequence, we have held that
a nurse and an emergency medical technician owed
no duty of care to a patient’s sister, who fainted while
observing a medical procedure performed on the
patient; Murillo v. Seymour Ambulance Assn., Inc.,
[264 Conn. 474, 477–78, 823 A.2d 1202 (2003)]; a psychia-
trist owed no duty to a patient’s former spouse for any
direct injury to the marriage caused by the allegedly
negligent treatment of the patient for marital difficul-
ties; see Jacoby v. Brinckerhoff, 250 Conn. 86, 88, 95–98,
735 A.2d 347 (1999); a psychiatrist who evaluated chil-
dren for possible sexual abuse owed no duty of reason-
able care to protect the children’s father, the suspected
abuser, from false accusations of abuse arising out of
the performance of the evaluations; Zamstein v. Mar-
vasti, 240 Conn. 549, 550–51, 559–61, 692 A.2d 781
(1997); and a physician owed no duty of care to his
patient’s daughter, who suffered emotional distress as
a result of observing the patient’s health deteriorate
because of the physician’s malpractice. Maloney v. Con-
roy, 208 Conn. 392, 393, 403, 545 A.2d 1059 (1988). The
only time that we have even contemplated enlarging
the duty of a health care provider to include a person
who is not a patient was when we considered whether
a psychotherapist owed a duty to a third party to control
an outpatient who was not known to have been danger-
ous. See Fraser v. United States, [236 Conn. 625, 627–30,
674 A.2d 811 (1996)]. In that case, we determined that
no duty existed in the absence of a showing that the
victim was either individually identifiable or, possibly,
was either a member of a class of identifiable victims
or within the zone of risk to an identifiable victim. Id.,
634. Accordingly, although there is no directly compara-
ble Connecticut case law on which to rely, our prece-
dent, in general, does not support extending the duty
of care . . . because, with one limited exception that
does not apply . . . we repeatedly have declined, in a
variety of situations, to extend the duty of health care
providers to persons who are not their patients.’’ (Cita-
tion omitted; emphasis omitted; internal quotation
marks omitted.) Jarmie v. Troncale, supra, 306 Conn.
592–93.
Although the precise factual circumstances of this
case present an issue of first impression, I conclude that
Connecticut precedent, as explained in Jarmie, demon-
strates this court’s consistent reluctance to extend the
legal duties of medical professionals to nonpatient third
parties. Indeed, no Connecticut case decided after Jar-
mie has disturbed the soundness of that assessment.2
Therefore, Connecticut precedent militates against rec-
ognizing a legal duty in the present case.
Consistent with Jarmie, I next consider a classic duty
analysis focused on the foreseeability of the alleged
harm. Id., 594–98. I agree with the majority’s observa-
tion that Jarmie left open the possibility that a duty
may exist in a case where the victim is identifiable,
and I also agree with the majority that, construing the
complaint in the present case in a light most favorable to
sustaining its sufficiency, the plaintiff was identifiable.3
Whereas the plaintiff in Jarmie was neither an identifi-
able victim nor a member of an identifiable class of
victims as a general motorist who might come in close
proximity to a vehicle operated by the patient following
her diagnosis; id., 597–98; the patient in the present
case explained to the defendant that he had sought STD
testing for the benefit of his new, exclusive girlfriend,
the plaintiff, thus making her identifiable to the defen-
dant. Our analysis in Jarmie did not, however, hinge
solely on the issue of foreseeability. We noted that ‘‘[a]
simple conclusion that the harm to the plaintiff was
foreseeable . . . cannot by itself mandate a determina-
tion that a legal duty exists.’’ (Internal quotation marks
omitted.) Id., 590. Considerations of foreseeability must
be tempered by the reluctance in Connecticut precedent
to extend the duties of health care providers to nonpa-
tient third parties and the weight of public policy consid-
erations, which militate against recognizing a duty in
the present case.
Our final consideration in Jarmie was whether public
policy considerations favored or disfavored recognition
of a duty. In addressing public policy concerns, we
considered the purposes of tort compensation and ‘‘four
specific factors to be considered in determining the
extent of a legal duty as a matter of public policy. . . .
(1) the normal expectations of the participants in the
activity under review; (2) the public policy of encourag-
ing participation in the activity, while weighing the
safety of the participants; (3) the avoidance of increased
litigation; and (4) the decisions of other jurisdictions.’’4
(Internal quotation marks omitted.) Id., 603.
‘‘[T]he fundamental policy purposes of the tort com-
pensation system [are] compensation of innocent par-
ties, shifting the loss to responsible parties or dis-
tributing it among appropriate entities, and deterrence
of wrongful conduct . . . . It is sometimes said that
compensation for losses is the primary function of tort
law . . . [but it] is perhaps more accurate to describe
the primary function as one of determining when com-
pensation [is] required. . . . An equally compelling
function of the tort system is the prophylactic factor
of preventing future harm . . . . The courts are con-
cerned not only with compensation of the victim, but
with admonition of the wrongdoer. . . . [I]mposing
liability for consequential damages often creates sig-
nificant risks of affecting conduct in ways that are unde-
sirable as a matter of policy. Before imposing such
liability, it is incumbent upon us to consider those
risks.’’ (Citations omitted; internal quotation marks
omitted.) Id., 599–600.
With regard to the compensation of innocent parties,
individuals like the plaintiff in the present case may
well be covered by public or private health insurance
policies, so it is not necessarily the case that the plain-
tiff, or others in her position, will be left without com-
pensation. Additionally, as we observed in Jarmie, ‘‘to
the extent an injured party may not be covered by a
. . . health insurance policy, the financial cost to vic-
tims . . . does not necessarily outweigh the impact of
the proposed duty on thousands of physician-patient
relationships across the state and the potentially high
costs associated with increased litigation . . . .’’ Id.,
601. As for the deterrence of wrongful conduct, if, as
the majority concludes, the duty owed to the plaintiff
is the same duty owed to the patient—namely, the accu-
rate reporting of STD testing results—then ‘‘expanding
the liability of health care providers would not reduce
the potential for harm because health care providers
would be required to do no more than they already
must do to fulfill their duty to patients.’’ Id., 601–602.
Finally, the same concerns we voiced in Jarmie con-
cerning interference with the physician-patient relation-
ship and an increase in litigation are present in this
case, and are discussed more fully subsequently in this
dissenting opinion.
I now move to the four specific factors discussed in
Jarmie. ‘‘Starting with the expectations of the parties,
long established common-law principles hold that phy-
sicians owe a duty to their patients because of their
special relationship, not to third persons with whom
they have no relationship. Furthermore, there is no state
statute or regulation that imposes a duty on health care
providers to warn a patient for the benefit of the public.’’
Id., 603–604. It is unlikely that a person harmed in the
manner that this plaintiff was harmed would expect to
be compensated by the physician, with whom he or she
has no special relationship, in light of the privileged
status of the physician-patient relationship and the
common-law protections granted to physicians. Conse-
quently, the normal expectations of the parties weigh
against recognition of a duty in the present case, as
they did in Jarmie.
Turning to the public policy of encouraging participa-
tion in the activity under review, recognizing a duty of
care under the circumstances of this case ‘‘would be
inconsistent with the physician’s duty of loyalty to the
patient, would threaten the inherent confidentiality of
the physician-patient relationship and would impermis-
sibly intrude on the physician’s professional judgment
regarding treatment and care of the patient.’’ Id., 606.
Indeed, ‘‘[u]nlike most duties, the physician’s duty to
the patient is explicitly relational: physicians owe a duty
of care to patients. . . . Mindful of this principle, we
have recognized on more than one occasion the physi-
cian’s duty of undivided loyalty to the patient . . . and
the patient’s corresponding loyalty, trust and depen-
dence on the professional opinions and advice of the
physician. . . . Undivided loyalty means that the
patient’s well-being must be of paramount importance
in the mind of the physician. Indeed, this is the founda-
tion for the patient’s reciprocal loyalty, trust and depen-
dence on the physician’s medical treatment and advice.
Consistent with this view, we have stated that, [a]s a
matter of public policy . . . the law should encourage
medical care providers . . . to devote their efforts to
their patients . . . and not be obligated to divert their
attention to the possible consequences to [third parties]
of medical treatment of the patient. . . . It is . . . the
consequences to the patient, and not to other persons,
of deviations from the appropriate standard of medical
care that should be the central concern of medical prac-
titioners. . . .
‘‘Extending a health care provider’s duty also would
threaten the confidentiality inherent in the physician-
patient relationship because lawsuits alleging a breach
of the duty would compel the use of confidential patient
records by defending physicians. The principle of confi-
dentiality lies at the heart of the physician-patient rela-
tionship and has been recognized by our legislature.
General Statutes § 52-146o was enacted in 1990; see
Public Acts 1990, No. 90-177; to address the need to
protect the confidentiality of communications in order
to foster the free exchange of information from patient
to physician . . . . The statute provides that a health
care provider shall not disclose patient information in
their files without the patient’s explicit consent. See
General Statutes § 52-146o (a). Thus, when a patient
decides to bring a claim against a health care provider,
the patient makes a purposeful decision to waive confi-
dentiality. . . . Subsection (b) (2) of § 52-146o, how-
ever, contains an exception whereby patient consent
is not required for the disclosure of communications
or records by a health care provider against whom a
claim has been made. Consequently, if [an injured third
party] files an action against the health care provider
of [a patient], records containing the patient’s medical
history will very likely be disclosed in court and sub-
jected to public scrutiny. The effect of expanding the
duty of a health care provider in this fashion cannot
be underestimated. Physician-patient confidentiality is
described as a privilege . . . . When that confidential-
ity is diminished to any degree, it necessarily affects
the ability of the parties to communicate, which in turn
affects the ability of the physician to render proper
medical care and advice. Accordingly, it is not in the
public interest to extend the duty of health care provid-
ers to third persons in the present context because
doing so would jeopardize the confidentiality of the
physician-patient relationship.’’5 (Citations omitted;
emphasis altered; footnote omitted; internal quotation
marks omitted.) Jarmie v. Troncale, supra, 306 Conn.
606–609.
Connecticut state law reflects additional patient con-
fidentiality concerns that militate against the recogni-
tion of a duty in the present case. State law demonstrates
the overarching primacy of patient confidentiality, even
in this context of infectious disease.6 Connecticut has
a communicable disease reporting system and a list of
specific diseases and conditions that physicians are
required to report to public health officials. See Regs.,
Conn. State Agencies § 19a-36-A2 (requiring Commis-
sioner of Public Health to issue list of reportable dis-
eases); see also Connecticut Department of Public
Health, ‘‘Reportable Diseases, Emergency Illnesses and
Health Conditions, and Reportable Laboratory Findings
Changes for 2019,’’ 39 Conn. Epidemiologist 1 (2019)
(list of reportable diseases). The reporting is made by
physicians to the public health authority, but it is gov-
ernment officials who may act on the information and
intervene with any third parties, not the reporting physi-
cian. See General Statutes. § 19a-215 (d). Put differently,
the physician has no statutory duty vis-à-vis any third
party beyond merely reporting the disease or condition
to the appropriate authority.
Another instructive example of the legislature’s con-
cern for confidentiality can be seen in Connecticut’s HIV
laws, upon which the majority relies for the proposition
that physicians’ public health obligations may transcend
their duties to individual patients, observing that the
state ‘‘permit[s] physicians to warn, or to disclose confi-
dential patient information for the purpose of warning,
a known partner of a patient who has been diagnosed
with an HIV infection or related disease.’’ The HIV stat-
ute is protective of confidentiality insofar as it does not
permit a physician to directly inform a sexual partner
about a patient’s HIV test results under circumstances
similar to this case. See General Statutes § 19a-584 (b)
(physician may only directly inform known partner if
both partner and patient are under physician’s care
or if patient has requested it). Although the majority’s
opinion does not impose a duty to warn on physicians
under the circumstances of this case, the overarch-
ing emphasis placed on confidentiality by the legisla-
ture, including the legislature’s decision not to impose
further statutory duties on physicians to warn under
similar circumstances, coupled with the threat that con-
fidential records may be disclosed in litigation without
the patient’s consent, suggest that imposition of a duty
under the circumstances of this case is incongruous
with the legislature’s repeated emphasis on patient con-
fidentiality. Put plainly, recognizing a duty under the
circumstances of this case endangers participation in
the activity under review because it interferes with phy-
sicians’ duty of loyalty to their patients and threatens
the sanctity of physician-patient confidentiality.
Moving to the avoidance of the increased risk of
litigation, the Department of Public Health has pub-
lished STD reporting statistics for 2015 that indicate
approximately 13,269 reported cases of Chlamydia,
2,092 reported cases of Gonorrhea, and 99 reported
cases of Syphilis that year. Connecticut Department of
Public Health, ‘‘Chlamydia, Gonorrhea, and Primary and
Secondary Syphilis Cases Reported by Town,’’ (2015),
available at https://portal.ct.gov/-/media/Departments-
and-Agencies/DPH/dph/infectious_diseases/std/
Table12015pdf (last visited July 11, 2019). Assuming
that each of those individuals was in an exclusive sexual
relationship, there would have been 15,460 additional
individuals to whom physicians may have owed a duty
under the majority’s opinion in the present case. This
increase in the risk of litigation threatens more than
just the pocketbooks of physicians and their insurers;
it threatens patient care. A likely consequence of this
expansion of liability is that physicians will be reticent
to discuss their patients’ romantic relationships or sex-
ual behavior in an attempt to avoid identifying third
parties to whom the physician could be liable, despite
such an approach not necessarily being in the patient’s
best interests. This reaction, referred to as ‘‘defensive
medicine’’ in medical literature, involves physicians
altering treatment and advice as part of an effort to
avoid liability, and it is considered to have very negative
and costly effects on the provision of health care. See
J. Greenberg & J. Green, ‘‘Over-testing: Why More Is
Not Better,’’ 127 Am. J. Med. 362, 362–63 (2014); M.
Mello et al., ‘‘National Costs of the Medical Liability
System,’’ 29 Health Aff. 1569, 1572 (2010); see also B.
Nahed et al., ‘‘Malpractice Liability and Defensive Medi-
cine: A National Survey of Neurosurgeons,’’ (2012), p. 4,
available at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3382203/pdf/pone.0039237.pdf (last visited July
11, 2019).
An additional concern is the effect that an expansion
of the potential liability of physicians is likely to have
on malpractice insurance rates. Connecticut health care
professionals cannot obtain a license to practice medi-
cine without showing that they have adequate malprac-
tice insurance. See General Statutes § 20-11b (a). If
insurance premiums for physicians increase to an unaf-
fordable level, physicians may leave the practice of
medicine or, at the least, stop offering the services that
instigate such high premiums. An instructive example
of this concern is the early 2000s crisis in the field of
obstetrics. ‘‘Soaring malpractice insurance costs led to
the closings of trauma and maternity wards across the
country [and] forced many obstetricians to give up
obstetrics, restrict services, deny certain high-risk
patients, become consultants, relocate, retire early, or
abandon their practices all together.’’ (Footnote omit-
ted.) S. Domin, ‘‘Where Have All the Baby-Doctors
Gone? Women’s Access to Healthcare in Jeopardy:
Obstetrics and the Medical Malpractice Insurance Cri-
sis,’’ 53 Cath. U. L. Rev. 499, 499–500 (2004). The threat
of something similar happening in Connecticut requires
that we exercise caution, particularly in an area where
the potential consequences are such that the legislature
is in a better position to address these concerns than
our courts are.
Indeed, this is an issue on which the legislature has
previously acted. As we observed in Jarmie, part of
the impetus behind the enactment of our medical mal-
practice statute, § 52-190a, was ‘‘to put some measure
of control on what was perceived as a crisis in medical
malpractice insurance rates.’’ (Internal quotation marks
omitted.) Jarmie v. Troncale, supra, 306 Conn. 591.
One such measure of control, the requirement that an
opinion letter issued by a similar health care provider
be attached to a medical negligence complaint, was
suggested by the General Assembly’s Legislative Pro-
gram Review and Investigations Committee after it
conducted hearings following a significant increase in
medical malpractice insurance rates in the early 2000s.
See Legislative Program Review and Investigations Com-
mittee, Connecticut General Assembly, Medical Mal-
practice Insurance Rates (December 2003). Because
the majority’s opinion recognizes a duty to potentially
thousands of new plaintiffs, which is very likely to have
an impact on medical malpractice rates, this court
should not throw caution to the wind and take such
action when the legislature is in a much better position
to investigate the issue, and make findings and recom-
mendations on the subject, as it has done in similar
circumstances.
Given that the legislature has acted extensively in
the areas of both STD reporting and to provide physi-
cians relief from professional liability, I am hesitant to
usurp its ‘‘primary responsibility for formulating public
policy’’ by recognizing a new duty to third party nonpa-
tients. (Internal quotation marks omitted.) Mayer v.
Historic District Commission, 325 Conn. 765, 780, 160
A.3d 333 (2017). Indeed, in Sic v. Nunan, 307 Conn.
399, 410, 54 A.3d 553 (2012), this court recognized that
primary responsibility for public policy in declining to
impose a duty on motorists stopped at an intersection
to keep their wheels pointed straight, emphasizing that
the legislature had ‘‘not seen fit to enact any statutes’’
in that respect. Thus, I disagree with the majority’s
decision to adopt a duty in the present case that will
expand the pool of potential litigants, increase the risk
of litigation, and threaten access to and the quality of
patient care in this state—in contravention of legislative
action on point.
Finally, turning to decisions of other jurisdictions, I
note that there is no clear trend in our sister courts
that supports usurping the legislature’s responsibility
for public policy and creating the duty that the majority
recognizes in the present case. To be sure, there is
case law that supports the decision of the majority. See
Reisner v. Regents of the University of California, 31
Cal. App. 4th 1195, 1197–201, 37 Cal. Rptr. 2d 518 (1995)
(physician owed duty to unknown and unidentifiable
sexual partner of patient to warn patient or her parents
of patient’s HIV positive status), review denied, Califor-
nia Supreme Court, Docket No. S045274 (May 18, 1995);
C.W. v. Cooper Health System, 388 N.J. Super. 42, 58–62,
906 A.2d 440 (App. Div. 2006) (hospital and its physi-
cians owed direct duty to unknown and unidentifiable
sexual partner of patient to warn patient of patient’s
HIV positive status); DiMarco v. Lynch Homes-Chester
County, Inc., 525 Pa. 558, 563–64, 583 A.2d 422 (1990)
(physicians owed duty to sexual partner of patient with
hepatitis not to give erroneous advice to patient because
class of foreseeable victims included anyone who was
intimate with patient);7 Estate of Amos v. Vanderbilt
University, 62 S.W.3d 133, 138 (Tenn. 2001) (university
medical center owed duty to future husband and future
daughter of HIV positive patient to warn patient so she
might take precautionary measures preventing trans-
mission of HIV because future husband and future
daughter were within class of identifiable persons
within zone of danger). I find, however, that sister state
cases declining to recognize a third party duty for physi-
cians are more consistent with our state’s public policy
and precedent. See, e.g., Hawkins v. Pizarro, 713 So.
2d 1036, 1037–38 (Fla. App.) (physician owed no duty
to future spouse of patient when physician improperly
advised patient she tested negative for hepatitis C),
review denied, 728 So. 2d 202 (Fla. 1998); Dehn v. Edgec-
ombe, 384 Md. 606, 622, 865 A.2d 603 (2005) (physician
owed no duty to wife of patient when physician negli-
gently failed to provide patient with minimally accept-
able medical care in connection with a vasectomy);
Herrgesell v. Genesee Hospital, 45 A.D. 3d 1488,
1490, 846 N.Y.S.2d 523 (2007) (physician owed no duty
to daughter of patient when daughter contracted hepati-
tis B from patient because physician does not owe duty
to nonpatient who contracts illness from patient, even
if physician knows nonpatient cares for patient or is
family member of patient); Candelario v. Teperman,
15 A.D. 3d 204, 204–205, 789 N.Y.S.2d 133 (2005)
(physician owed no duty to daughter of patient when
daughter contracted hepatitis C, even though physician
was aware daughter was caring for patient); D’Amico
v. Delliquadri, 114 Ohio App. 3d 579, 581–83, 683 N.E.2d
814 (1996) (physician owed no duty to girlfriend of
patient when girlfriend contracted genital warts from
patient after defendant cared for and treated patient).
Consequently, the decisions of our sister courts demon-
strate no clear trend on the broader recognition and
extent of physicians’ third party duties, let alone the
specific duty that the majority recognizes in the pres-
ent case.8
Accordingly, 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 ramifica-
tions 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 defer-
ring 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 con-
siderations and the practical challenges of implement-
ing a recording mandate’’). Accordingly, I conclude that
the trial court properly granted the defendant’s motion
to strike.
Because I would affirm the judgment of the trial
court, I respectfully dissent.
1
I agree with the majority’s observation in footnote 3 of its opinion that
‘‘the plaintiff’s allegations may fit most neatly under the rubric of negligent
misrepresentation. Because neither party has addressed the issue, however,
we need not determine whether the allegations in the complaint are legally
sufficient to plead a cause of action in negligent misrepresentation under
the law of this state.’’ I nevertheless respectfully disagree with part II B
1 of its opinion, in which the majority discusses principles of negligent
misrepresentation at length in combining them with other tort law principles,
in order to create a duty of care that we have not previously recognized in this
state. Because I do not agree that principles of negligent misrepresentation
support recognizing a direct duty of care owed by physicians to nonpatients,
I respectfully disagree with this portion of part II B 1 of the majority’s opinion.
2
The majority relies on Squeo v. Norwalk Hospital Assn., 316 Conn. 558,
113 A.3d 932 (2015), to bolster its argument that Connecticut precedent is
‘‘unsettled with respect to the particular question presented here.’’ That case
is, however, distinguishable. In Squeo, a case involving a bystander emotional
distress claim and medical malpractice, and not ordinary negligence, we
only cited to Jarmie to note that our rejection of a bar on a cause of action
for bystander emotional distress in the context of medical malpractice was
consistent with our rejection of a per se rule barring third-party tort claims
in the absence of a physician-patient relationship. Squeo v. Norwalk Hospital
Assn., supra, 573–74. Squeo does not disturb our assessment of Connecticut
precedent in Jarmie that this court is reluctant to extend the duties of
medical professionals to nonpatient third parties. See id., 580–81 (concluding
that ‘‘bystander to medical malpractice may recover for the severe emotional
distress that he or she suffers as a direct result of contemporaneously
observing gross professional negligence such that the bystander is aware,
at the time, not only that the defendant’s conduct is improper but also that
it will likely result in the death of or serious injury to the primary victim’’).
Further, the majority’s reliance on Squeo illustrates a problem with the
majority’s efforts to limit this case to the precise circumstances presented.
The majority effectively uses Squeo as evidence that we have already stepped
through the door left open in Jarmie, and, ‘‘if our decision in Squeo has
not resulted in the parade of horribles that the dissent invokes . . . then
we can have some reassurance that the alarmist warnings in the present
case will be no more prescient.’’ As I argue subsequently in this dissenting
opinion, the public policy concerns implicated in the context of STDs apply
with equal or greater force to any number of different infectious diseases,
a contention the majority disputes. Just as the majority relies on Squeo to
support an expansion of liability under the circumstances of the present
case, this court may subsequently rely on today’s decision as a precedent
to support further expansions of liability in other contexts. Because I find
the majority’s efforts to distinguish STDs from other infectious diseases in
the context of the present case unavailing, I see it as unlikely that, in the
future, the Connecticut Bar or even the courts of this state will view the
precedential value of today’s decision as limited to STDs.
3
I disagree with the majority’s observation that, despite quoting ‘‘heavily’’
from Jarmie, I ‘‘barely [acknowledge]’’ that the present case raises a different
question than the one at issue in Jarmie. I believe my agreement with the
majority’s observation that Jarmie left open the possibility that a duty may
exist in a case where the victim is identifiable is acknowledgment enough
that this case cannot be simply disposed of under Jarmie.
The majority further states that ‘‘it would be a mistake . . . to simply
conclude that Jarmie disposes of the issue presented in this case without
carefully evaluating the fundamentally distinct considerations that charac-
terize the context of communicable diseases.’’ I take no issue with that
statement. In fact, the standard articulated by Jarmie requires evaluation
of policy considerations. The majority and I have each evaluated the policy
considerations, and conclude differently as to whether they militate in favor
of or in opposition to recognition of a duty in this case. In essence, the
majority believes certain policy concerns are so strong that this court should
walk through the door left open in Jarmie. I, however, would stop at the
threshold of that doorway.
I further emphasize that the majority misunderstands this dissent as stand-
ing for my belief ‘‘that, for reasons of public policy, we never should impose
on physicians any duties beyond those established by the legislature.’’
(Emphasis added.) Instead, I take the position that, when, as in the present
case, our court is so deeply divided as to whether public policy concerns
support recognition of a legal duty, and when the implications of such
recognition of a duty may be so vast, the legislature is in a far better position
to make such a determination given its institutional advantages with respect
to considering and receiving evidence as to matters of public policy. See,
e.g., Cefaratti v. Aranow, 321 Conn. 593, 632–33, 141 A.3d 752 (2016) (Zarella,
J., dissenting) (observing that, in deciding whether doctrine of apparent
authority or apparent agency should be available to tort plaintiffs, ‘‘[i]t is
not the role of this court to strike precise balances among the fluctuating
interests of competing private groups . . . such as, on the one hand, people
who are similarly situated to the plaintiff . . . and, on the other hand,
hospitals and other health-care institutions,’’ and noting that this ‘‘function
has traditionally been performed by the legislature, which has far greater
competence and flexibility to deal with the myriad complications [that] may
arise from the assignment of liability’’ [citation omitted; internal quotation
marks omitted]); Campos v. Coleman, 319 Conn. 36, 65–66, 123 A.3d 854
(2015) (Zarella, J., dissenting) (‘‘[T]his court has the authority to change
the common law to conform to the times. In a society of ever increasing
interdependence and complexity, however, it is an authority this court
should exercise only sparingly. . . . [T]he legislature, unlike this court, is
institutionally equipped to gather all of the necessary facts to determine
whether a claim for loss of parental consortium should be permitted and,
if it should, how far it should extend. The legislature can hold public hearings,
collect data unconstrained by concerns of relevancy and probative value,
listen to evidence from a variety of experts, and elicit input from industry
and society in general. Further, elected legislators, unlike the members of
this court, can be held directly accountable for their policy decisions.’’
[Citation omitted; emphasis in original; footnote omitted.]); Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 439, 119 A.3d 462 (2015)
(‘‘balancing of interests that are accommodated by statutes of limitations’’
is ‘‘factual [matter] within the legislative purview’’); State v. Lockhart, 298
Conn. 537, 574, 4 A.3d 1176 (2010) (observing that ‘‘determining . . . param-
eters’’ of state constitutional rule requiring recording of custodial interroga-
tions ‘‘requires weighing competing public policies and evaluating a wide
variety of possible rules’’ and noting that ‘‘such determinations are often
made by a legislative body because it is in a better position to evaluate the
competing policy interests at play’’).
4
Before addressing the precedents of other jurisdictions and public policy
considerations, the majority states that, ‘‘[i]n Jarmie, after we concluded
that Connecticut precedent did not bar the imposition of the duty at issue,
we proceeded to look to sister state authority and also to consider whether
various policy factors favored the imposition of such a duty.’’ Although I
agree that Connecticut precedent did not per se bar the imposition of such
a duty, I emphasize that this court left little doubt in Jarmie as to how
Connecticut precedent viewed the imposition of similar duties on health
care providers. As noted previously, this court explicitly concluded that,
‘‘although there is no directly comparable Connecticut case law on which
to rely, our precedent, in general, does not support extending the duty of
care . . . because, with one limited exception that does not apply . . . we
repeatedly have declined, in a variety of situations, to extend the duty of
health care providers to persons who are not their patients.’’ Jarmie v.
Troncale, supra, 306 Conn. 593.
5
The majority contends, however, that such confidentiality concerns may
be present in other cases, but do not exist in a case like this, in which a
plaintiff will ostensibly have full access to the pertinent medical records
via the patient, her exclusive romantic partner. But this reasoning would
further limit the majority’s holding to the alleged facts of this case, meaning
that in a nearly identical future scenario, in which all that is different from
the present case is that the patient is uncooperative with the plaintiff’s
action with regard to the disclosure of medical records—such as might
happen if the relationship dissolved—there might be no recognition of a
duty. I am aware of no Connecticut case law suggesting that our recognition
of a duty of care should turn on the alleged willingness of a nonparty patient
to have his or her medical records made available in a nonpatient’s action
sounding in ordinary negligence. Consequently, I respectfully find the majori-
ty’s response to confidentiality concerns—that such concerns may be pres-
ent in other cases, but do not exist in the present case—unconvincing.
6
I note that in its discussion of public policy concerns, the majority
focuses a great deal of attention on public health concerns, namely, the
diagnosis and treatment of infectious diseases. The majority suggests that
in the context of such diseases, ‘‘a physician’s duties and loyalties necessarily
must be divided between the patient and other people whom the patient
may infect,’’ and ‘‘the principle that a physician’s duty to protect the broader
public health and to help to deter the spread of contagious diseases at times
transcends the physician’s duty to his or her individual patient has long
been codified in federal and state law.’’
7
The dissenting justice in DiMarco observed that ‘‘the dangers of adopting
a negligence concept of duty analyzed in terms of scope of the risk or
foreseeability are considerable and are to be avoided. These dangers include
. . . the prospect of inducing professionals to narrow their inquiries into
the client or patient situation, to the detriment of the client or patient, so
as to avoid possible liability toward third parties which might come from
knowing ‘too much.’ ’’ (Footnote omitted.) DiMarco v. Lynch Homes-Chester
County, Inc., supra, 525 Pa. 565–66 (Flaherty, J., dissenting).
8
The majority attempts to distinguish these cases as not analogous enough
to the precise circumstances of the present case, leaving the majority with
a handful of cases it deems worthy of consideration. Even if I were to agree
with the majority’s winnowing of the list of cases we should consider to be
relevant, I would hardly call a four to one majority in favor of the majority’s
position a convincing consensus among our sister courts, especially when
so few courts have weighed in on the precise question presented.
9
Finally, even if I were to agree with the majority’s recognition of a direct
duty of care on the facts of the present case, which I respectfully do not,
the future ramifications of the majority’s opinion would nevertheless give
me pause. Although the majority repeatedly cautions that its holding is
limited and narrow, I nevertheless find this contention troubling because
its implications portend just the opposite result. First, although the majority
states that its decision is limited strictly to cases involving the diagnosis of
STDs, the public policy concerns discussed therein apply with equal or
even greater force to any number of different infectious diseases, such as
chickenpox, influenza, and measles. It is likely that in cases with identifiable
nonpatient third parties, the majority’s opinion in this case will be held up
as a logically convincing precedent to further extend the potential liability
of health care providers. Second, the majority’s foreseeability analysis is
inherently subjective. What if the physician has awareness of a romantic
partner’s existence independent of knowledge obtained from the patient,
such as through a social relationship? There is little reason why this court’s
logic would not counsel in favor of recognizing a duty in such a case,
concerns of which would be exacerbated should the majority’s decision be
extended beyond STDs to other infectious diseases, such as influenza. Put
differently, the majority’s opinion sets a precedent that will easily open the
floodgates to a great expansion of potential third party liability for health
care providers.