§47.22 Duty to Warn Non-Patient Family Member of Risk of Contracting Rocky Mountain Spotted Fever From Patient

The Case : Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993).

The Basic Facts: The son of a woman who contracted Rocky Mountain Spotted Fever from her husband and eventually died brought suit against the husband's physician. The son alleged that the physician was negligent in failing to warn the mother of the risks associated with the disease.

The Bottom Line:

• "The defendant physician argues that he owed his patient's wife no legal duty because first, there was no physician-patient relationship, and second, Rocky Mountain Spotted Fever is not a contagious disease and, therefore, there is no duty to warn of the risk of exposure." 854 S.W.2d at 869.
• "We begin our analysis by examining how we determine when a legal duty may be imposed upon one for the benefit of another. While duty was not part of the early English common law jurisprudence of tort liability, it has since become an essential element in negligence cases. No claim for negligence can succeed in the absence of any one of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. McClenahan v. Cooley, [806 S.W.2d 767, 774 (Tenn. 1991)]; Lindsey v. Miami Development Corp., [689 S.W.2d 856, 858 (Tenn. 1985)]. The existence or nonexistence of a duty owed to the plaintiff by the defendant is entirely a question of law for the court. [Prosser § 37 at 236]; Glenn v. Conner, [533 S.W.2d 297, 302 (Tenn. 1976)]; Dooley v. Everett, [805 S.W.2d 380, 384 (Tenn. Ct. App. 1990)]. In determining the issue, a court should consider

  ... whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others--or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.... A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant. A decision that if certain facts are found to be true, a duty exists, leaves open the other questions now under consideration [concerning the existence of negligence].

  Lindsey , [689 S.W.2d at 859 (quoting Prosser, § 37 at 236].
  
  Thus, the imposition of a legal duty reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct. [Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953)]; Kirk v. Reese Hospital & Medical Ctr., [513 N.E.2d 387, 396-97 (Ill. 1987)]. Indeed, it has been stated that ''duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' [Prosser, § 53 at 358]. Our determination of this question of law is de novo upon the record, viewing the evidence in a light most favorable to the plaintiff, the non-moving party, allowing all reasonable inferences and discarding all countervailing evidence. Byrd v. Hall, [847 S.W.2d 208, 210 (Tenn. 1993)]; Cowden v. Sovran Bank/Central South, [816 S.W.2d 741, 744 (Tenn. 1991)]." Id. at 869-70 (footnote omitted).
• "The defendant contends that the absence of a physician-patient relationship negates the existence of a duty in this case. While it is true that a physician-patient relationship is necessary to the maintenance of a medical malpractice action^FN2, it is not necessary for the maintenance of an action based on negligence, and this Court has specifically recognized that a physician may owe a duty to a non-patient third party for injuries caused by the physician's negligence, if the injuries suffered and the manner in which they occurred were reasonably foreseeable. Wharton Transport Corp. v. Bridges, [606 S.W.2d 521, 526 (Tenn. 1980)] (physician owed duty to third party injured by disabled truck driver's negligence, where the physician was negligent both in his physical examination and certification of the truck driver for the employer).

  FN2 See, e.g., Bass v. Barksdale, [671 S.W.2d 476, 486 (Tenn. Ct. App. 1984)]; Dunbar v. Strimas, [632 S.W.2d 558, 562 (Tenn. Ct. App. 1981)]; Osborne v. Frazor, [425 S.W.2d 768, 771 (Tenn. Ct. App. 1968)]."

  Id. at 870.
• "Here, we are asked to determine whether a physician has an affirmative duty to warn a patient's family member about the symptoms and risks of exposure to Rocky Mountain Spotted Fever, a non-contagious disease. Insofar as we are able to determine, there is no reported decision from this or any other jurisdiction involving circumstances exactly similar to those presented in this case." Id.
• "We begin by observing that all persons have a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to others. Doe v. Linder, [845 S.W.2d 173, 178 (Tenn. 1992)]; [RESTATEMENT (SECOND) OF TORTS § 314 (1964)]." Id.
• "In determining the existence of a duty, courts have distinguished between action and inaction. Professor Prosser has commented that 'the reason for the distinction may be said to lie in the fact that by 'misfeasance' the defendant has created a new risk of harm to the plaintiff, while by 'nonfeasance' he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs.' [Prosser, § 56 at 373]; Lindsey, supra, 689 S.W.2d at 859." Id.
• "Because of this reluctance to countenance nonfeasance as a basis of liability, as a general rule, under the common law, one person owed no affirmative duty to warn those endangered by the conduct of another. [Prosser, § 56 at 374]; Tarasoff v. Regents of University of California, [551 P.2d 334, 343 (Cal. 1976)]." Id.
• "To mitigate the harshness of this rule, courts have carved out exceptions for cases in which the defendant stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger. Lindsey, 689 S.W.2d at 859; Tarasoff, 551 P.2d at 343; [RESTATEMENT (SECOND) OF TORTS § 315 (1964)]. Accordingly,

  while an actor is always bound to prevent his acts from creating an unreasonable risk to others, he is under the affirmative duty to act to prevent another from sustaining harm only when certain socially recognized relations exist which constitute the basis for such legal duty.

  [Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887 (1934)]." Id. at 871.
• "One of the most widely known cases applying that principle is Tarasoff, supra, in which the California Supreme Court held that when a psychotherapist determines or, pursuant to the standards of his profession, should determine that his patient presents a serious danger of violence to another, the therapist has an affirmative duty to use reasonable care to protect the intended victim against such danger, and the duty may require the physician to warn the intended victim of the danger. 551 P.2d at 340. The special relationship of the patient to his psychotherapist supported imposition of the affirmative duty to act for the benefit of third persons. 551 P.2d at 343-44; see generally Williams, Annotation, Liability of One Treating Mentally Afflicted Patient for Failure to Warn or Protect Third Persons Threatened by Patient, 83 A.L.R.3d 1201 (1978 & Supp.1992)." Id.
• "Decisions of other jurisdictions have employed the same analysis and held that the relationship of a physician to his patient is sufficient to support the duty to exercise reasonable care to protect third persons against foreseeable risks emanating from a patient's physical illness. Specifically, other courts have recognized that physicians may be liable to persons infected by a patient, if the physician negligently fails to diagnose a contagious disease, or having diagnosed the illness, fails to warn family members or others who are foreseeably at risk of exposure to the disease." Id. (citations omitted).
• "Returning to the facts of this case, first, it is undisputed that there was a physician-patient relationship between Dr. Daniel and Elmer Johns. Second, here, as in the contagious disease context, it is also undisputed that Elmer Johns' wife, who was residing with him, was at risk of contracting the disease. This is so even though the disease is not contagious in the narrow sense that it can be transmitted from one person to another. Both Dr. Daniel and Dr. Prater, the plaintiff's expert, testified that family members of patients suffering from Rocky Mountain Spotted Fever are at risk of contracting the disease due to a phenomenon called clustering, which is related to the activity of infected ticks who transmit the disease to humans. Dr. Prater also testified that Dr. Daniel negligently failed to diagnose the disease and negligently failed to warn his patient's wife, Genevieve Johns, of her risk of exposure to the source of disease. Dr. Daniel's expert disputed these conclusions, but Dr. Daniel conceded there is a medical duty to inform the family when there is a diagnosis of the disease. Thus, this case is analogous to the Tarasoff line of cases adopting a duty to warn of danger and the contagious disease cases adopting a comparable duty to warn. Here, as in those cases, there was a foreseeable risk of harm to an identifiable third party, and the reasons supporting the recognition of the duty to warn are equally compelling here." Id. at 872.
• "We, therefore, conclude that the existence of the physician-patient relationship is sufficient to impose upon a physician an affirmative duty to warn identifiable third persons in the patient's immediate family against foreseeable risks emanating from a patient's illness. Accordingly, we hold that under the factual circumstances of this case, viewing the evidence in a light most favorable to the plaintiff, the defendant physician had a duty to warn his patient's wife of the risk to her of contracting Rocky Mountain Spotted Fever, when he knew, or in the exercise of reasonable care, should have known, that his patient was suffering from the disease. Our holding here is necessarily limited to the conclusion that the defendant physician owed Genevieve Johns a legal duty. We express no opinion on the other elements which would be required to establish a cause of action for common-law negligence in this case." Id. at 872-73.

Other Sources of Note: Burroughs v. Magee , 118 S.W.3d 323 (Tenn. 2003) (physician owed duty to plaintiffs to warn his patient about possible adverse risk of medication on his ability to drive but did not owe duty to plaintiffs in deciding whether to prescribe those medications).

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