The state Supreme Court has declined to further expand upon the narrow line of facts imposing a physician’s duty to third parties, ruling in a case over whether doctors who treat prison inmates have a duty to warn at-risk corrections officers that an inmate has a communicable disease.
In a 33-page opinion penned by Justice Thomas G. Saylor, a 5-1 Supreme Court reversed the state Superior Court, opting not to carve out a new cause of action as to doctors’ third-party liability that would extend beyond the doctor-patient relationship. Absent from the plaintiff’s pleadings was a “broader policy assessment,” which Saylor said would be needed if the court were to consider imposing a new, affirmative duty on physicians that would involve third-party interventions.
Such policy implications were among a host of points raised by not only the health care organization defendant in the lawsuit, Prison Health Services, but also its amicus supporters, the Pennsylvania Medical Society and the Pennsylvania Defense Institute, whose positions were oft-mentioned in Saylor’s opinion.
In light of the policy arguments in Seebold v. Prison Health Services, according to Saylor, plaintiff Michelle Seebold apparently changed, or added to, the position she had proffered in the lower courts — that two controlling cases and the Restatement (Second) of Torts provided her a cause of action.
Before the high court, Seebold’s “tack” was to “moderate” her position to one that allowed jurors to assess the extent of the duty and perhaps impose a lesser one in this case, Saylor said.
“She suggests that, if she is permitted to proceed before a jury, perhaps the jurors will select duties of a less controversial nature than direct warnings and advice to prison guards,” the justice said.
In Seebold’s words, according to her brief: “A jury might find that a simple note to prison officials stating that a particular inmate should be placed in solitary confinement may satisfy PHS’s duties under Section 324A in this case.”
Other suggestions, such as circulating a memo about a skin condition or correctly diagnosing the condition in the first place and advising the inmate how to prevent its spreading would suffice.
The difficulty in that, Saylor said, was that duty assessment is “a matter for the courts, not juries,” even if the courts aren’t the ideal place for it.
The point on Seebold’s position followed a discussion from Saylor noting that, while the courts are tasked with making the duty or no-duty call, perhaps they’re not best suited for it.
“Dean William L. Prosser of the University of California-Berkeley is frequently quoted for the proposition that the inquiry entails wading through ‘shifting sands [with] no fit foundation,’” Saylor said. “Certainly, such nebulous undertakings do not serve as a favorable underpinning for closely reasoned judicial decision-making.”
He added: “Moreover, the adjudicatory process — premised on adversarial presentations, which by their nature may be skewed in favor of the individual interests at stake — does not consistently translate well into the field of broader policymaking.”
Where the two controlling cases — DiMarco v. Lynch Homes-Chester County and Troxel v. A.I. duPont Institute — expanded upon a “category of potential plaintiffs,” those cases did not require a doctor to break confidentiality restrictions and intervene with a third party, Saylor concluded.
In DiMarco, the high court imposed a duty on physicians to advise patients on how to avoid spreading a disease (in that case, a sexually transmitted disease) with which they are infected.
In Troxel, according to Saylor, the state Superior Court set forth a cause of action in favor of a third-party non-patient after a doctor failed to advise a patient about the risks of spreading her disease to the unborn children of a woman who babysat for the infected patient.
Saylor also reasoned the Restatement (Second) of Torts did not support the imposition of additional duties such as third-party interventions on health care providers.
“The present case was framed from the outset as an effort to fundamentally alter the nature of that obligation to extend the requirement for affirmative physician interventions outside the physician-patient relationship,” Saylor said. “As PHS and its amici have demonstrated, this sort of material extension obviously implicates a host of policy considerations that were simply not before the court in DiMarco” and Troxel.
Rejecting the plaintiff’s argument that she had asserted a cause of action under the two prior cases or the Restatement (Second) of Torts, Saylor remanded the matter to the Lycoming County Court of Common Pleas for the reinstatement of a judge’s order sustaining PHS’s preliminary objections.
“In the absence of policy arguments or a request for an opportunity to develop a record, the court did not err in applying the default approach of declining to impose upon professional undertakings new affirmative common-law duties running to third parties to the professional relationship,” Saylor said. “Moreover, the present appeal does not afford an adequate foundation to make an informed social policy assessment which would support the imposition of a new affirmative duty on physicians to make third-party interventions.”
In Seebold, Seebold was a corrections officer at SCI-Muncy, tasked with strip-searching female inmates before and after they had visitors. When Seebold contracted methicillin-resistant Staphylococcus aureus, commonly known as MRSA, she said it was because of her contact with inmates whom she claimed defendant Prison Health Services diagnosed as having spider bites when, she claimed, they had MRSA.
She filed suit, contending that PHS’s staff knew or should have known about the infections and had a duty of reasonable care to the SCI-Muncy staff to warn and protect them from contracting MRSA.
The state Superior Court distinguished Seebold from DiMarco and Troxel because the instant matter dealt with an allegation that PHS failed to diagnose MRSA; in other words, Seebold was different because there was no MRSA diagnosis in the first place.
However, the court found that distinction not controlling, according to Saylor, and ruled that Seebold had a cause of action under DiMarco and Troxel. The court reconciled what Saylor called an “apparent incongruity” by reasoning that it could not “‘speculate’” as to what measures PHS could have taken in a prison environment that were consistent with PHS’s regulatory and ethical obligations.
The court rejected the contention that its holding would open up the possibility of an avalanche of third-party lawsuits, saying the facts in Seebold put the plaintiff in a “‘narrow class of highly foreseeable plaintiffs,’” Saylor said, quoting the intermediate appellate court.
The majority of the panel, according to the docket, featured Judges Christine L. Donohue and Robert E. Colville. Now-suspended Supreme Court Justice Joan Orie Melvin sat on the Superior Court panel at the time, and dissented.
PHS’s attorney, Alan S. Gold of Gold and Ferrante in Jenkintown, Pa., welcomed the decision as the court’s continued adherence to the duty of care test it established in the case of Althaus v. Cohen.
“It’s an extremely well-written opinion by the court,” Gold said. “It shows this court is committed to protecting physicians from the burdensome expansion of their liability to third parties.”
“You could discharge DiMarco duty by talking to your patient,” Gold added. If the court carved out a duty in Seebold, physicians would have “had to go to every prison guard and [would have] had to break doctor-patient confidentiality.”
As set forth in the seminal Althaus case, there are five factors a court should consider in determining whether a defendant owes a duty of care to a plaintiff: the relationship between the parties, the social utility of the actor’s conduct, the nature of risk and foreseeability of harm, the consequences of imposing a duty upon an actor and the overall public interest in the proposed solution.
Michael H. Collins of McNerney, Page, Vanderlin & Hall in Williamsport, Pa., represented Seebold and was not available for comment.
In a dissenting opinion, Justice Seamus P. McCaffery said the case could have turned on whether the PHS doctors owed Seebold, herself, a duty when determining whether inmates had MRSA.
“In analyzing that question, I conclude that the PHS physicians did owe such a duty to take reasonable care to protect prison guards such as [Seebold] from acquiring an MRSA infection from infected inmates,” McCaffery said. “The second question, however, regarding whether the PHS physicians owed a duty to warn third parties about avoiding contracting MRSA, is not really pertinent at this stage of the litigation.”
The alleged failure to warn stemmed from the physicians’ alleged failure to diagnose MRSA, which McCaffery reasoned pertains more to causation and damages than it does to duty.
That said, McCaffery said it would be proper to impose a duty under DiMarco and Troxel.
John J. Hare of Marshall Dennehey Warner Coleman & Goggin represented the Defense Institute and offered this comment: “We agree with the Supreme Court majority that the duties of Pennsylvania physicians should not be expanded beyond the physician-patient relationship and into these uncharted waters. Except in extreme circumstances involving specific threats of imminent violence, physicians cannot be expected to identify and seek out third parties with whom a patient may come in contact and notify those third parties about risks, including risks associated with communicable diseases, that may be presented by the patient.”
Eckert Seamans Cherin & Mellott attorney Robert B. Hoffman said this, on behalf of the Pennsylvania Medical Society: “The opinion is important because it tells trial courts to [be] very cautious in imposing new liabilities on physicians particularly as to non-patients. There will still be some areas where physicians have a duty to a non-patient, but they should be few and far between.”
Both attorneys were ostensibly referring to Emerich v. Philadelphia Center for Human Development — the case in which the Supreme Court imposed a duty on a therapist to advise the intended murder victim of one of the therapist’s patients.
Saylor called that case “unique in many respects” and one that and has been “expressly cabined” by the high court.
(Copies of the 39-page opinion in Seebold v. Prison Health Services, PICS No. 13-0106, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •