Supreme Court Year In Review: 'Duty Of Care' Issues Mark Key Cases
Due to an editor's error, the following article was accidentally omitted from the Connecticut Supreme Court Year In Review section published in the September 30 issue of the Connecticut Law Tribune.
In the arena of claims against health care providers, the Supreme Court wrestled with a variety of issues, including whether or not a plaintiff had to prove that the hospital had prior knowledge of its pedophilic doctor's deviant sexual tendencies; whether a third party may bring a claim against a physician for his failure to inform his patient of risks associated with her condition; and whether an expert witness can spout off in court about tort reform and jurors must be forewarned about media coverage.
Add to that a couple of cases concerning lay opinion on causation, novel evidentiary rulings and a certificate of good faith case, and it is clear that this was an active, developmental year.
The horrific facts of Doe v. St. Francis Hospital and Medical Center, 309 Conn. 146 (2013), are well-known to many Connecticut residents. Beginning in 1964 and for decades thereafter, Dr. George Reardon purported to conduct a "child growth study" under the auspices of, and on the premises of, his employer, St. Francis Hospital. The ostensible purpose was to measure the growth rates of normal children to assist in the treatment of children with abnormally low rates of growth. In fact, Reardon was a pedophile and child pornographer who used the so-called study as a ruse to recruit and sexually exploit hundreds of unsuspecting children. The named plaintiff was one of those children. He brought this action against the hospital alleging, first, that the hospital negligently had failed to supervise Reardon's activities in connection with the study and, second, that the hospital had breached the special duty of care that it owed to children in its custody. The defendant appealed the jury verdict in favor of the plaintiff, making several claims of instructional error.
In the 5 to 1 decision, Justice Richard Palmer's exegesis on duty resolved in a statement of the following principle: "As this and many other courts have recognized, when a defendant's conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, or when the defendant otherwise has a legally cognizable duty to aid or protect another person, the fact that the harm is brought about by the actions of a third party does not relieve the defendant of liability, even though the third party's conduct is criminal, if the harm that occurred is within the scope of the risk created by the defendant's conduct or reasonably could have been anticipated in light of the defendant's duty to protect. Thus, when the harm resulting from the criminal misconduct of a third party is foreseeable in view of the facts and circumstances presented, there is no reason why the injured party should nevertheless be required to establish that the defendant had actual or constructive knowledge of the third party's criminal propensity."
Also in Doe, the court noted a particularly important evidentiary principle. It is generally true that a violation of an employer's work rules can be viewed as evidence of negligence, but such a violation does not establish the applicable duty of the hospital to its patients, since hospital rules, regulations and policies do not themselves establish the standard of care. However, after the plaintiff's expert testified in Doe that the hospital's bylaws did in fact represent the standard of care, the defendant was not entitled to an instruction on the inapplicable general principle.
Meanwhile, in Jarmie v. Troncale, 306 Conn. 578 (2012), the court reached the opposite conclusion that no duty existed. The specific holding of this decision was that a physician who fails to advise an unaware patient of the potential driving risks associated with her underlying medical condition does not owe a duty to the victim of the patient's unsafe driving because of the failure to advise. But the larger implications of this decision are that third party claims against a doctor will not be recognized in this state, except in the narrow setting of a psychotherapist's duty to a third party harmed by a patient. See Fraser v. United States, 236 Conn. 625 (1996).
Analyzing this case from both perspectives of a medical malpractice and an ordinary negligence claim, Justice Peter Zarella shot down the plaintiff's causes of action. Viewed as a malpractice case, the court held that the plaintiff's complaint was legally insufficient because it contained no allegations that the plaintiff and the defendant doctor had a physician-patient relationship as required under Connecticut's medical malpractice law. As an ordinary negligence claim, the court held that the defendant doctor owed no duty to the plaintiff in this case because Connecticut precedent did not support it, the plaintiff was an unidentifiable victim, public policy considerations counseled against it, and there was no consensus among courts in other jurisdictions, which have considered the issue only rarely.
In his dissent, Justice Dennis Eveleigh did not buy what the majority was selling. His interpretation of Connecticut law was that the plaintiff had amply stated a cause of action in ordinary negligence. Under the specific facts of this case, he would conclude that the defendant doctor owed a duty to his patient to warn her of the potential risks associated with her underlying medical condition as they related to routine activities such as driving. The defendant's breach of the duty to his patient, in turn, constituted a breach of duty to the injured third party in the present case who was struck by the patient's car after she blacked out while driving.
In Downs v. Trias, 306 Conn. 81 (2012), the court explored the nexus between claims of medical negligence and lack of informed consent. The issue presented was whether a physician, in failing to provide a patient with information, may incur liability for falling short of the professional standard of care. The court's answer was a resounding "Yes." A physician has both a professional duty to possess or obtain certain medical knowledge, as well as a duty — judged by a lay standard — to communicate the risks, benefits and alternatives of a contemplated procedure to his patient. A physician who fails to apprise his patient of certain facts may, therefore, be held liable for his failure to know the information in the first place (traditional medical negligence) and for his failure to convey that information to the patient (lack of informed consent.) In other words, under certain circumstances, the same set of facts, may give rise to two distinct, but complementary, causes of action.