Climate Change Project

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Disease Control

Physician's duty to protect others from contaminated tissue samples. - Doe v. Smith --- N.Y.S.2d ----, 2000 WL 557362 (N.Y.Sup. 2000)

This is terrible case in which a lab technician was accidentally infected with
HIV and tuberculosis from a needle stick.  During surgery on a patient infected
with HIV and tuberculosis, the surgeon drew a sample of pus into a syringe, then
put the syringe, with needle still attached, into a sample container and sent it
to the lab, in violation of appropriate standards for handling such samples.
The technician then stuck herself while attempting to recap the needle, an
action that was in itself in violation of hospital infection control procedures.
The surgeon claimed that he owned no duty to the technician, that the sample was
improperly packaged by a nurse employed by the hospital, and that plaintiff's
injury resulted from her own negligence.  The court disagreed with the
physician's assertion of no duty, finding that while a physician may not owe a
duty to the general public, there is a duty to persons who would reasonably be
expected to come into contact with such contaminated samples.  The court
determined that whether the nurse was under the physician's control in the
operating room was a factual issue to be decided by the jury, as was whether his
negligence, if any, was the proximate cause of plaintiff's injuries.  This case
has a useful review of the New York precedent on a physician's duty to third
parties regarding communicable diseases.

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