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  • Taking Chances2:24

In Pate v. Threlkel, decided this summer, the Florida Supreme Court held that physicians do indeed have a duty to warn, but that duty probably does not go beyond warning the patient.

 

In March of 1987, Marianne New presented with and received treatment for medullary thyroid carcinoma, a genetically transmittable disease. Three years later, Ms. New's adult daughter, Heidi Pate, discovered that she also had medullary thyroid carcinoma.

 

Heidi and her husband subsequently filed a complaint against the physicians who had treated her mother for the disease. The suit alleged that those physicians knew or should have known of the likelihood that Marianne New’s children would have genetically inherited this condition. The plaintiffs also alleged that the physicians had a duty to warn Mrs. New that her children should be tested for the disease. They claim that this would have allowed the daughter to take preventive action when the disease was in a likely more curable stage.


The lower courts in this case through out the Pates' complaint on the basis that there was no relationship between Marianne New's physicians and the patient's daughter and her husband. On appeal, however, the Florida Supreme Court held that a legal relationship is not always necessary to establish liability. It ruled that this is especially true in looking to the professional relationship between a healthcare provider and the child of a patient.


Furthermore, the Court held that a prevailing standard of care may create a duty where there is obvious benefit to certain identified third parties. If there is such a standard, and the physician knows of the existence of those third parties, then that physician's duty of care runs to those third parties.


Having imposed this duty on a physician, the Court then created another question: If there is a duty to warn, to whom must a physician convey the warning? In looking at that question, the Court recognized the difficulties that would be presented by requiring a physician to actually warn the patient's children.


The most obvious difficulty, of course, would be that in most instances, absent explicit consent, the physician can not disclose a patient's medical condition to others. Secondly, it would be impractical to require a physician to seek out and warn various family members, and certainly would place a heavy burden on the physician. So the Court held that in the instances of a genetically transferable disease, the physician does have a duty to warn, but that duty is satisfied by warning the patient. It would then be up to the patient to warn his or her children.


For example, in Grantham v. O'Grady, a recent Superior Court case in Massachusetts, the plaintiff was a bystander who had been struck by a car. The driver has abruptly stopped taking medication and this led her to black out at the wheel of a car.


The court allowed an action for negligence against the driver’s physician to proceed. The court said there is a legitimate question whether there is a duty to warn third parties that arises from a physician-patient relationship. In this case, the physician stopped the patient’s medication and the court ruled that a jury could decide whether the physician could reasonably forsee the consequences to a potential third party. The court ruled that, “The right to recover for…damages should not be denied because they do not fit in any of the existing niches in the ancient walls surround the law of torts. If the current needs of society require and justify so doing, the walls may be extended and additional niches built to accomplish justice.”


If there is a foreseeable risk of harm to a third party, the physician needs to fully inform the patient of that potential risk and the steps the person should take to avoid such harm. The physician should note in his record that the patient has been so informed. Such documentation will help facilitate future care and be an effective defense against any claims of this type. Finally, the nature and extent of such a discussion should be guided by the physician's opinion regarding the likelihood of the harm occurring.


Warning About Genetically Transmitted Diseases

by Attorney Frank E. Reardon

October 1995

REARDON LAW OFFICE