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| [1] | COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE |
| [2] | No. B076913 |
| [3] | 1995.CA.47142 <http://www.versuslaw.com>;
31 Cal. App. 4th 1195; 37 Cal. Rptr. 2d 518 |
| [4] | Decided: January 26, 1995. |
| [5] | DANIEL REISNER, PLAINTIFF AND APPELLANT, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL., DEFENDANTS AND RESPONDENTS. |
| [6] | Superior Court of Los Angeles County, No. SC006282, Irving A. Shimer,
Judge. |
| [7] | Stanley K. Jacobs and Gregory J. Walters for Plaintiff and Appellant. |
| [8] | Patterson, Ritner, Lockwood, Zanghi & Gartner, Robert R. Scholl, Greines,
Martin, Stein & Richland, Martin Stein and Roxanne Huddleston for Defendants
and Respondents. |
| [9] | Opinion by Vogel Miriam A., J., with Ortega, Acting P. J., and Masterson,
J., Concurring. |
| [10] | Vogel |
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[31 CalApp4th Page 1197]
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| [11] | The day after 12-year-old Jennifer Lawson received a transfusion, her
doctor discovered the blood was contaminated with HIV antibodies. Although
the same doctor continued to treat Jennifer, he never told her or her parents
about the tainted blood. Three years later, Jennifer started dating Daniel
Reisner and they became intimate. Two years later, the doctor told Jennifer
she had AIDS and Jennifer told Daniel. A month later, Jennifer died. Shortly
thereafter, Daniel discovered he was HIV positive. Daniel sued Jennifer's
doctor and others for negligence. The defendants moved for judgment on the
pleadings, claiming they owed no duty to Daniel, an unidentified third person.
The motion was granted. We reverse. |
| [12] | FACTS |
| [13] | On April 18, 1985, during surgery performed at the UCLA Medical Center
by Jennifer's physician, Eric Fonklesrud, M.D., Jennifer received blood
and |
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[31 CalApp4th Page 1198]
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| [14] | plasma transfusions. The next day, Dr. Fonklesrud and UCLA learned the
blood given to Jennifer was contaminated with human immunodeficiency virus
(HIV) antibodies and the donor of the blood was notified--but neither Dr.
Fonklesrud nor UCLA told Jennifer or her parents about the contaminated
blood, either at that time or at any time during the next five years of
Jennifer's continuing treatment.*fn1 More
specifically, no one told Jennifer or her parents that Jennifer might develop
acquired immune deficiency syndrome (AIDS) or warned them about the dangers
of contagion or counseled them about precautionary measures to prevent the
spread of the disease to others. |
| [15] | About three years later, Jennifer started dating Daniel and, at some point,
they became intimate. Obviously, since Jennifer did not know she had been
exposed to AIDS, she could not warn Daniel about the risk he was taking. |
| [16] | On March 7, 1990, Jennifer "was diagnosed as having AIDS and it was
determined that she had become infected as a result of the blood transfusion
received in 1985 at UCLA." Jennifer and her parents told Daniel and
Daniel was immediately tested for AIDS. A month later, Jennifer died. Shortly
thereafter, Daniel was told he was HIV positive. |
| [17] | Daniel sued Dr. Fonklesrud and the Regents of the University of California
for damages. Motions for judgment on the pleadings by Dr. Fonklesrud and
UCLA were granted with leave to amend as to Daniel's original and first
amended complaints and, thereafter, Daniel filed his second amended complaint,
the operative pleading on this appeal. The defendants again moved for judgment
on the pleadings and, again, the motion was granted, this time without leave
to amend--on the theory that no duty was owed to an unidentifiable third
party. Daniel appeals from the judgment thereafter entered. |
| [18] | Discussion |
| [19] | When the avoidance of foreseeable harm to a third person requires a defendant
to control the conduct of a person with whom the defendant has a special
relationship (such as physician and patient) or to warn the person of the
risks involved in certain conduct, the defendant's duty extends to a third
person with whom the defendant does not have a special relationship. (Tarasoff
v. Regents of University of California (1976)
17 Cal. 3d 425
, |
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[31 CalApp4th Page 1199]
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| [20] | 434-436 [
131 Cal. Rptr. 14
,
551 P.2d 334
, 83 A.L.R.3d 1166].) Dr. Fonklesrud and UCLA concede as much but contend
this rule does not create a duty where, as here, the third person is both
unknown and unidentifiable. We disagree.*fn2 |
| [21] | In Tarasoff, a therapist who knew his patient intended to kill a young
woman failed to warn the woman or her parents and the patient later killed
the woman. When the woman's parents sued the therapist and others for her
wrongful death, the therapist claimed the only duty he owed was to his patient.
Our Supreme Court disagreed, holding that "[w]hen a therapist determines,
or pursuant to the standards of his profession should determine, that his
patient presents a serious danger of violence to another, he incurs an obligation
to use reasonable care to protect the intended victim against such danger.
The discharge of this duty may require the therapist to take one or more
of various steps, depending upon the nature of the case. Thus it may call
for him to warn the intended victim or others likely to apprise the victim
of the danger, to notify the police, or to take whatever other steps are
reasonably necessary under the circumstances." (Tarasoff v. Regents
of University of California, supra,
17 Cal. 3d at p. 431.
) |
| [22] | For several reasons, it is immaterial that, in Tarasoff, the therapist
knew the identity of his patient's intended victim whereas, in this case,
Defendants did not know Daniel or even that he existed. |
| [23] | A. |
| [24] | First, Tarasoff dictates the result in our case by holding that the doctor's
duty includes the duty to warn "others likely to apprise the victim
of the danger ... or to take whatever ... steps are reasonably necessary
under the circumstances." (Tarasoff v. Regents of University of California,
supra,
17 Cal. 3d at p. 431.
) Daniel does not claim Defendants had to warn him, only that they had to
warn Jennifer or her parents, "others [who were] likely to apprise
[him] of the danger" (and, of course, did just that when they learned
of it). |
|
[31 CalApp4th Page 1200]
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| [25] | B. |
| [26] | Second, there is the case of Myers v. Quesenberry (1983)
144 Cal. App. 3d 888
[
193 Cal. Rptr. 733].
In Myers, two physicians (Quesenberry and Beaumont) were treating a pregnant
patient (Hansen) for diabetes. During an examination at Quesenberry's office,
the doctor concluded the fetus had died. When Quesenberry told Hansen to
have the dead fetus removed within 18 hours, Hansen became emotionally upset.
"The doctors then directed Hansen to drive immediately to [a local
hospital] for preliminary laboratory tests. Hansen lost control of her car
due to a diabetic attack and struck Myers as he was standing by the side
of the road." (Id. at pp. 890-891.) Myers sued the doctors. The trial
court sustained the doctors' demurrer without leave to amend and the issue
on appeal was whether they owed a duty to Myers, with whom they had no relationship,
for failing to warn their patient of the foreseeable and dangerous consequences
of engaging in the conduct which caused Myers's injuries. (Id. at p. 890.) |
| [27] | The Court of Appeal reversed, holding (among other things) that "the
fact that Myers was a foreseeable but not a readily identifiable victim
of Hansen's driving does not preclude him from stating an action against
the doctors for negligently failing to warn her not to drive in an irrational
and uncontrolled diabetic condition. As a practical matter, the doctors
here could not have effectively warned Myers of the danger presented by
Hansen's driving.... However, they could easily have warned Hansen not to
drive because of her irrational and uncontrolled diabetic condition. Under
the facts as alleged here, this probably would not have been a futile act.
Having otherwise complied with her doctors' professional recommendations,
Hansen presumably would have continued to follow their advice had they warned
her not to drive.... On these pleadings, we cannot factually presume Hansen
would have ignored the doctors' warning. Thus, under these circumstances
where warning the actor is a reasonable step to take in the exercise of
the standard of care applicable to physicians ..., liability is not conditioned
on potential victims being readily identifiable as well as foreseeable."
(Myers v. Quesenberry, supra,
144 Cal. App. 3d at pp. 892-893
, italics added.) |
| [28] | Similarly, on the pleadings before us, where warning Jennifer would have
been a reasonable step to take in the exercise of the standard of care applicable
to physicians, Defendants' liability is not conditional upon Daniel's identity
being known or ascertainable, and we cannot factually presume Jennifer or
her parents would have ignored Defendants' warning. According to Daniel's
complaint, as soon as Jennifer and her parents discovered Jennifer had AIDS,
Daniel was immediately notified. As a result, it |
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[31 CalApp4th Page 1201]
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| [29] | appears a timely warning to Jennifer probably would have prevented Daniel's
injury. |
| [30] | We reject Defendants' efforts to distinguish Myers by suggesting there
is no "immediate temporal connection" here as there was in Myers
(where the doctors told their patient to immediately drive to the hospital)--because
Defendants did not tell Jennifer to become intimate with Daniel and because
at least three years "elapsed between the negligent act and [Daniel's]
injury." This analysis begs the question. Dr. Fonklesrud maintained
a physician-patient relationship with Jennifer until she died, which was
after Daniel's injury. Just as Dr. Fonklesrud knew or reasonably should
have known that Jennifer was likely to get AIDS as a result of the contaminated
blood, he knew or reasonably should have known that, as she matured, Jennifer
was likely to enter an intimate relationship. What happened to Daniel as
a result of Defendants' failure to warn Jennifer was just as foreseeable
as what happened to Mr. Myers--which is why we reject Defendants' euphemistic
effort to limit liability on an artificial and immaterial basis.*fn3 |
| [31] | C. |
| [32] | Third, the facts of this case compel a Conclusion designed to encourage
the highest standard of care concerning communicable and infectious diseases,
and Defendants' arguments to the contrary are red herrings. |
| [33] | 1. |
| [34] | In DiMarco v. Lynch Homes-Chester County (1990) 525 Pa. 558 [583 A.2d
422], the Supreme Court of Pennsylvania considered this issue on facts strikingly
similar to those of our case. In DiMarco, a blood technician (Viscichini)
was accidentally punctured while taking a blood sample from a patient. When
Viscichini learned the patient had hepatitis, she immediately sought treatment
from two physicians, both of whom told her that, if she remained symptom
free for six weeks, it would mean she had not been infected by the hepatitis
virus. Although she was not told to refrain from sexual relations for any
period of time, she did so until eight weeks after exposure. As she had
remained symptom free during that time, she then resumed sexual relations
with her boyfriend (DiMarco). Three months after exposure, Viscichini developed
Hepatitis B and, three months after that, DiMarco was diagnosed as having
the same disease. (Id. at p. 423.) |
|
[31 CalApp4th Page 1202]
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| [35] | DiMarco sued Viscichini's doctors, claiming they were negligent in not
warning Viscichini that if she had sexual relations within six months of
exposure she could infect her sexual partner. In affirming the existence
of a duty owed to DiMarco, the court explained that when "a physician
treats a patient who has been exposed to or who has contracted a communicable
and/or contagious disease, it is imperative that the physician give his
or her patient the proper advice about preventing the spread of the disease.
Communicable diseases are so named because they are readily spread from
person to person. Physicians are the first line of defense against the spread
of communicable diseases, because physicians know what measures must be
taken to prevent the infection of others. The patient must be advised to
take certain sanitary measures, or to remain quarantined for a period of
time, or to practice sexual abstinence or what is commonly referred to as
'safe sex.' |
| [36] | "Such precautions are taken not to protect the health of the patient,
whose well-being has already been compromised, rather such precautions are
taken to safeguard the health of others. Thus, the duty of a physician in
such circumstances extends to those 'within the foreseeable orbit of risk
of harm.' ... If a third person is in that class of persons whose health
is likely to be threatened by the patient, and if erroneous advice is given
to that patient to the ultimate detriment of the third person, the third
person has a cause of action against the physician, because the physician
should recognize that the services rendered to the patient are necessary
for the protection of the third person." (DiMarco v. Lynch Homes-Chester
County, supra, 583 A.2d at pp. 424-425, some italics added.)*fn4 |
| [37] | 2. |
| [38] | Defendants contend we should find they owed no duty to Daniel because
the imposition of liability on these facts would not prevent future harm.
According to Defendants, the search for a means to prevent or to cure AIDS
"has been the subject of an unprecedented, worldwide mobilization of
scientists, physicians and health care providers, with international conferences
on the disease held in Atlanta, Paris, Washington, Stockholm and Montreal.
(Grmek, History of AIDS (Princeton U. Press 1990) p. 182 |
|
[31 CalApp4th Page 1203]
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| [39] | Literally billions of dollars are poured into efforts to combat the spread
of AIDS." What this means, according to Defendants, is that it "defies
logic to suggest that these heroic efforts fall short of an all-out effort
to combat AIDS and that imposing tort liability to individual victims would
speed up the search for better detection, treatment, and a cure." Defendants
miss the point. |
| [40] | Civil liability for a negligent failure to warn under the circumstances
of this case may not hasten the day when AIDS can be cured or prevented
but it may, in the meantime, protect one or more persons from unnecessary
exposure to this deadly virus. |
| [41] | 3. |
| [42] | We summarily reject Defendants' alternative suggestion that a physician
ought not to owe any duty to a third person because such a duty could adversely
affect the doctor's treatment of his patient, to whom his primary duty is
owed. As explained above, existing California law already imposes a duty
to third persons and the only arguably "new" issue in this case
is whether that duty is the same when the third person's identity is unknown
to the physician and not readily ascertainable. And, contrary to Defendants'
contention, the duty involved in this case--a duty to warn a contagious
patient to take steps to protect others--has nothing to do with a physician's
decision about how to treat his patient*fn5
or with a physician's potential liability for the unauthorized disclosure
of AIDS test results. (
Health
& Saf. Code, § 199.20 et seq.) Once the physician warns the patient
of the risk to others and advises the patient how to prevent the spread
of the disease, the physician has fulfilled his duty--and no more (but no
less) is required. |
| [43] | 4. |
| [44] | We also reject Defendants' suggestion that we ought not to find a duty
is owed to Daniel because it would necessarily follow that a duty would |
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[31 CalApp4th Page 1204]
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| [45] | be owed to "other persons with whom [Daniel] had sex, and the persons
with whom they had sex," and so on ad infinitum. Why? Because "insurance
premiums would soar and, quite likely, coverage at any price would not exist
long." There are at least two reasons for rejecting this argument. |
| [46] | First, it presumes too much. Arguments premised on opened floodgates and
broken dams are not persuasive where, as here, we suspect that only a few
drops of water may spill onto a barren desert. To actually recover in this
case, Daniel will be required to prove (not merely allege) that a physician
and a teaching hospital, knowing they had inadvertently infected a patient
with a contagious disease that is almost always deadly, failed to tell her
what had happened and failed to warn her about the danger in infecting her
loved ones. Daniel will also have to prove causation--not just that Jennifer
would have told him about her illness and that he would then have refrained
from intimate contact with her but also that he could not have acquired
the disease elsewhere. We recognize the sympathetic nature of Daniel's case
and the probability that jurors might be inclined to construe the evidence
in favor of a young man and against those whose negligence probably sentenced
him to death. But the very facts which favor Daniel in this case show how
unlikely it is that there are dozens of other Daniels waiting in the wings. |
| [47] | Second, the argument goes too far. We need not decide in this case what
the result would be if someone infected by Daniel sued the doctor who failed
to warn Jennifer, and the fact that a duty is owed to Daniel does not mean
it will be extended without limitation. However, the possibility of such
an extension does not offend us, legally or morally. Viewed in the abstract
(and not with reference to Jennifer or Daniel), we believe that a doctor
who knows he is dealing with the 20th Century version of Typhoid Mary*fn6
ought to have a very strong incentive to tell his patient what she ought
to do and not do and how she ought to comport herself in order to prevent
the spread of her disease. In any event, the doctor's liability to fourth
and fifth persons would by its nature be limited by traditional causation
principles. (Nola M. v. University of Southern California (1993)
16 Cal. App. 4th 421
, 427-428 [
20 Cal. Rptr. 2d 97].
) |
| [48] | In short, we see no reason to limit duty in this particular case. |
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[31 CalApp4th Page 1205]
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| [49] | DISPOSITION |
| [50] | The judgment is reversed and the matter is remanded to the trial court
with directions to set the case for trial. Daniel is awarded his costs of
appeal. |
| [51] | Ortega, Acting P. J., and Masterson, J., concurred. |
| [52] | Disposition |
| [53] | The judgment is reversed and the matter is remanded to the trial court
with directions to set the case for trial. Daniel is awarded his costs of
appeal. |
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| Opinion Footnotes | |
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| [54] | *fn1 On this appeal from a judgment
on the pleadings, we accept as true the allegations of Daniel's operative
pleading (Croeni v. Goldstein (1994)
21 Cal. App. 4th 754
, 758 [
26 Cal. Rptr. 2d 412]
), and we do not speculate about the specifics of the charges. |
| [55] | *fn2 This was the only issue raised
in the trial court and it is the only issue properly before us on this appeal.
Accordingly, we treat Dr. Fonklesrud and UCLA in the same manner, without
regard to whether, for other purposes, they may stand in different positions
vis-a-vis their liability to Daniel. (See, e.g., Derrick v. Ontario Community
Hospital (1975)
47 Cal. App. 3d 145
, 154 [
120 Cal. Rptr. 566]
[a hospital does not owe a duty to warn a patient that she had contracted
a contagious, communicable disease when the patient has an attending physician
who has undertaken to treat and advise her].) For similar reasons, we do
not reach Defendants' causation issues. Causation was not raised below and
could not, in any event, be determined at the pleading stage in a case such
as this. |
| [56] | *fn3 Several other states have reached
the same result as Myers. (See, e.g., Gooden v. Tips (Tex.App. 1983) 651
S.W.2d 364, 369-370 [43 A.L.R.4th 139]; Kaiser v. Suburban Transportation
System (1965) 65 Wn.2d 461 [398 P.2d 14, 16]; Wilschinsky v. Medina (1989)
108 N.M. 511 [775 P.2d 713, 720]; Welke v. Kuzilla (1985) 144 Mich.App.
245 [375 N.W.2d 403, 406]; Joy v. Eastern Maine Medical Center (Me. 1987)
529 A.2d 1364, 1365-1366.) |
| [57] | *fn4 In DiMarco, a Dissenting Justice
suggested the rules limiting an attorney's duty to his client (and those
refusing to extend an attorney's duty to third persons) ought to be applied
in the medical context. (DiMarco v. Lynch Homes-Chester County, supra, 583
A.2d at pp. 426-427, dis. opn. of Flaherty, J.) The majority disagreed,
explaining that the "harm caused by a lawyer to a third party cannot
possibly equal the harm that a physician can do to society at large by negligently
failing to act to halt the spread of contagious and communicable diseases."
(Id. at p. 425, fn. 1.) We agree with the majority and therefore reject
the identical argument asserted in the case before us. |
| [58] | *fn5 See Annotation, Liability of Doctor
or Other Health Practitioner to Third Party Contracting Contagious Disease
From Doctor's Patient, 3 A.L.R.5th 370, an annotation of cases considering
whether a doctor is liable to a third party (1) for failing to diagnose
a disease in his patient, (2) for failing to inform the third person of
the contagious nature of the patient's disease, (3) for negligently advising
the third person that there was no danger of infection or (4) for failing
to prevent the spread of the disease to the third person. Other than DiMarco
v. Lynch Homes-Chester County, supra, 583 A.2d 422 (discussed at 3 A.L.R.5th
370, supra, at § 10), none of the cited cases involved a failure to warn
a contagious patient about what must be done to protect unknown third persons
and the cases discussed in this opinion are the only ones we have been able
to find on this issue. |
| [59] | *fn6 In the early 1900's, Mary Mallon,
an Irish cook working in the United States, was a typhoid carrier who, herself
immune to the typhoid bacilli, unwittingly infected virtually everyone with
whom she came in contact (51 original cases were directly attributed to
her). (Webster's Third New Internat. Dictionary (1981) p. 2476; 12 New Encyclopaedia
Britannica (15th ed. 1988) p. 88.) |
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