To disclose or not to disclose: Determining the scope and exercise of a physician's duty to warn third parties of genetically transmissible conditions

University of Cincinnati Law Review

Volumn 76, Issue 3, 2008, Pages 1019-1041

  Kovalesky, Mary L ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 49949092879     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (125)

1. Edmund L. Erde et al., Patient Confidentiality vs. Disclosure of Inheritable Risk: A Survey-Based Study, 106 J. AM. OSTEOPATHIC ASS'N 615 (2006). For background information on the Human Genome Project, see Human Genome Project Information, www.ornl.gov/sci/techresources/Human_ Genome/home.shtml (last visited Apr. 15, 2008).
2. MARK A. HALL, MARY ANNE BOBINSKI & DAVID ORENTLICHER, HEALTH CARE LAW AND ETHICS 103 (6th ed. 2003). "Ordinarily, the patient-provider relationship is a consensual one to which both parties must agree. Therefore, an individual physician may, generally speaking, refuse to accept patients for any reason or for no reason." Id.
3. 551 P.2d 334 (Cal. 1976). While this Comment contains references to this case due to its importance in the development of the physician's duty to warn third parties, the focus of this Comment is on the duty imposed on physicians treating non-psychiatric patients, specifically in the area of genetically transmissible conditions.
4. Id. at 340. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger 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. Id.
5. See, e.g., Taylor v. Smith, 892 So. 2d 887 (Ala. 2004).
6. See, e.g., Jones v. Stanko, 160 N.E. 456 (Ohio 1928). For a case involving the duty of a physician to warn a third party about a non-contagious disease, see Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993).
7. See Pate v. Threlkel, 661 So. 2d 278 (FIa. 1995); Safer v. Estate of Pack, 677 A.2d 1188 (N.J. 1996).
8. While this Comment contains some discussion of genetic testing, it does not cover the issue of prenatal genetic testing and its relevance to claims of wrongful life and wrongful birth. For more information on these topics, see generally Alan J. Belsky, Injury as a Matter of Law: Is This the Answer to the Wrongful Life Dilemma, 22 U. BALT. L. REV. 185 (1993); Jeffrey R. Botkin, Prenatal Diagnosis and the Selection of Children, 30 FLA. ST. U. L. REV. 265 (2003); Julia Walsh, Reproductive Rights and the Human Genome Project, 4 S. CAL. REV. L. & WOMEN'S STUD. 145 (1994).
9. Tarasoff, 551 P.2d at 340.
10. Ann Hubbard, Symposium Introduction, The Future of "The Duty to Protect": Scientific and Legal Perspectives on Tarasoff's Thirtieth Anniversary, 75 U. CIN. L. REV. 429, 429 (2006) ("Courts and legislatures have embraced, expanded, restricted or rejected Tarasoff's basic premise that mental health professionals have a duty to predict which of their patients will commit acts of violence and to protect third parties from that violence.").
11. Tarasoff, 551 P.2d at 339-40.
12. Id. at 340.
13. Id. at 341.
14. Id. at 353.
15. Id. at 343.
16. Id. at 345 ("Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.").
17. Id. at 346.
18. Id. at 347. To this end, the Court stated, "If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest." Id. at 347-348.
19. Id.
20. Id. at 340.
21. For cases where the court found a duty to warn non-patients, see, for example, Reisner v. Regents of the University of California, 37 Cal. Rptr. 2d 518 (Ct. App. 1995); C.W. v. Cooper Health Sys., 906 A.2d 440 (N.J. Super. Ct. 2006); DiMarco v. Lynch Homes-Chester County, Inc., 583 A.2d 422 (Pa. 1990). For cases where the court failed to find a duty to warn non-patients, see, for example, Candelario v. Teperman, 789 N.Y.S.2d 133 (App. Div. 2005) (holding that a physician did not owe a duty of care to warn the plaintiff that she could contract hepatitis C while caring for her infected mother because physicians only owe such a duty to a non-patient when the physician's treatment of the patient causes the non-plaintiff's injury); Spina v. Jack D. Weiler Hosp. of the Albert Einstein Coll. of Med., 813 N.Y.S.2d 406 (App. Div. 2006) (employing the same rationale as Candelario, and finding that the physician did not owe a duty of care to a non-patient who contracted tuberculosis while visiting her mother at the defendants' facility).
22. For cases where courts have found a duty to warn non-patients, see, for example, Taylor v. Smith, 892 So. 2d 887 (Ala. 2004); Hardee v. Bio-Med. Applications of S.C., Inc., 636 S.E.2d 629 (S.C. 2006). For limits on finding such a duty to warn, see Forlaw v. Fitzer, 456 So. 2d 432 (Fla. 1984) (noting that in the absence of the physician's acting in bad faith, the mere prescription of Quaaludes to a known drug addict does not give rise to a duty of care to a third party accident victim).
23. 160 N.E. 456, 456 (Ohio 1928).
24. Id. at 457.
25. Id. at 456.
26. Id. (syllabus).
27. 583 A.2d 422, 424 (Pa. 1990).
28. Id. at 423.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id. at 424.
34. Id.
35. Reisner v. Regents of the Univ. of Cal., 37 Cal. Rptr. 2d 518, 520 (Ct. App. 1995).
36. Id. at 519.
37. Id.
38. Id.
39. Id.
40. Id. at 520.
41. Id.
42. Id. at 520-21. The court stated that the facts supported the argument that the plaintiffs HIV infection was a foreseeable result of the physician's failure to inform his patient that she had been exposed to blood containing HIV antibodies. Id. According to the court: 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. Id. at 521.
43. Id.
44. Id. at 522-23. The court also dismissed the defendant's slippery slope argument that this decision extended physician liability to not only the patient's boyfriend, but also to anyone else infected by the patient's boyfriend. Id. at 523. The court stated: [T]he 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 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. Id.
45. 906 A.2d 440,452 (N.J. 2006).
46. Id. at 445-46.
47. Id. at 447.
48. Id.
49. Id.
50. Id.
51. Id. at 451.
52. Id. at 452.
53. See Bradshaw v. Daniel, 854 S.W.2d 865, 872 (Tenn. 1993).
54. Id.
55. Id.
56. Id. at 867.
57. Id. at 871. "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.
58. Id. at 872.
59. See, e.g., Taylor v. Smith, 892 So. 2d 887 (Ala. 2004); Hardee v. Bio-Med. Applications of S.C., Inc., 636 S.E.2d 629 (S.C. 2006). Not all jurisdictions, however, have extended this duty to warn to unidentifiable car accident victims. Concluding "that the benefit of warning an epileptic not to drive is incremental but that the consequences of imposing a duty are great," the Supreme Court of Texas declined to impose such a third-party duty to warn of physicians treating epileptic patients. Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).
60. Taylor, 892 So. 2d at 891. Even though she had signed a contract with the outpatient facility indicating that she was no longer using drugs while undergoing treatment, thirteen of the fourteen urinalysis tests conducted at the center revealed the presence of marijuana, benzodiazepines, or both. Id. at 890. Thus, the methadone administered to the patient was mixed continuously with the other drugs in her system. Id.
61. Id. at 891-92.
62. Id. at 893.
63. Id. at 895.
64. See Hardee, 636 S.E.2d at 631.
65. Id. at 630.
66. Id. at 631.
67. Id.
68. Id. at 631-32. The Court also noted the narrowness of its ruling, and thereby preserved the doctor-patient relationship, by characterizing this ruling as an "exception to the general rule that medical providers do not owe a duty to third party non-patients. Importantly, this duty owed... is identical to the duty owed to the patient, i.e., a medical provider must warn a patient of the attendant risks and effects of any treatment." Id.
69. See Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995); Safer v. Estate of Pack, 677 A.2d 1188 (N.J. 1996).
70. Pate v. Threlkel, 640 So. 2d 183, 186 (Fla. Dist. Ct. App. 1994), rev'd, 661 So. 2d 278 (Fla. 1995). In this case, the physician had performed surgery on the plaintiffs mother for medullary thyroid carcinoma but had failed to warn his patient of about the need for her children to be tested for this genetically-transmissible condition. Id. at 183. The plaintiff argued that, as a result of this failure to warn, she was not tested early enough to prevent her development of medullary thyroid cancer. Id. The issue before the court was "whether a physician has a duty to the children of a patient with a genetically transferrable [sic] disease to warn that patient of the hereditary nature of the disease in order that the patient's children can be tested to determine if they have inherited the disease and need immediate treatment." Id.
71. Id. at 185.
72. Id. at 186.
73. Pate, 661 So.2d at 282.
74. Id. at 281.
75. Id. at 282 ("We conclude that when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties.").
76. Id.
77. Safer v. Estate of Pack, 677 A.2d 1188, 1192-93 (N.J. 1996). In this case, the physician, Dr. George Pack, had treated the plaintiffs father, Robert Batkin, for a precancerous disease known as multiple polyposis of the colon, from which he later died in the early 1960s. Id. at 1189-90. Thirty years later, the plaintiff, Donna Safer, also developed multiple polyposis. Id. at 1190. After having obtained her father's medical records, she learned that he had suffered from the same disease that she had. Id. In response, she filed suit in 1992 alleging that Dr. Pack had violated a duty of care by failing to warn Ms. Safer of the risk to her health. Id.
78. Id. at 1190.
79. Id. at 1190-91. The lower court not only found that the physician owed the plaintiff, as his patient's daughter, no duty due to a lack of treatment relationship, but also distinguished genetically transmissible conditions from contagious diseases and threats of harm because the harm had already been introduced to the patient's daughter through her genes. Id. at 1191.
80. Id. at 1191.
81. Id.
82. Id. at 1192 (internal citations omitted).
83. Id. at 1192-93. While the court recognized that a problem could arise in cases where the patient expressly prohibited the physician from discussing the details of his disease, it left the issue unsettled for the moment due to a lack of evidence in the case necessitating such a discussion. See id.
84. See Janet L. Dolgin, The Evolution of the "Patient": Shifts in Attitudes About Consent, Genetic Information, and Commercialization in Health Care, 34 HOFSTRA L. REV. 137, 171-73 (2005) (characterizing the concept of patient as closer to the "genetic family" recognized in Safer).
85. The National Conference of State Legislatures is "a bipartisan organization that serves the legislators and staffs... [by providing] research, technical assistance and opportunities for policymakers to exchange ideas on the most pressing state issues. NCSL is an effective and respected advocate for the interests of state governments before Congress and federal agencies." National Conference of State Legislatures, Governing NCSL, http://www.ncsl.org/ public/govern.htm (last visited Apr. 15, 2008).
86. See National Conference of State Legislatures, State Genetic Summary Table on Privacy Laws, http://www.ncsl.org/programs/health/genetics/prt. htm (last visited Apr. 15, 2008). This list of twenty-seven states includes Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Carolina, Texas, Vermont, Virginia, and Washington. See id.
87. See Gary N. McAbee et al., Physician's Duty to Warn Third Parties About the Risk of Genetic Diseases, 102 PEDIATRICS 140, 141 (1998).
88. See, e.g., CAL. INS. CODE § 10149.1 (West 2007); COLO. REV. STAT. § 10-3-1104.7 (2007); GA. CODE ANN. § 33-54-1 (2007).
89. N.J. STAT. ANN. § 10:5-47 (West 2007).
90. Id. § 10:5-47(a).
91. McAbee et al., supra note 87, at 141 (arguing that this piece of legislation is not inconsistent with the Safer requirement of direct notification because physicians could inform third parties about the genetic risks without disclosing the identity of the patient).
92. 410 ILL. COMP. STAT. ANN. 513/30 (West 2007).
93. Id. § 30(a)(1). This same language was repeated in the provision covering a minor's test results. See id. § 30(a)(6).
94. Id. § 30(a)(1).
95. N.Y. CIV. RIGHTS LAW § 79-l (McKinney 2007).
96. Id. § 79-l(d).
97. Id.
98. JANET DOLGIN & LOIS L. SHEPHERD, BIOETHICS AND THE LAW 333-35 (2005).
99. Id. at 333.
100. Id.
101. Id.
102. Id. at 333-34.
103. Id.
104. Id.
105. Founded in 1948, the American Society of Human Genetics (ASHG) is, according to its website, "the primary professional membership organization for human genetics specialists worldwide." American Society of Human Genetics, http://www.ashg.org/ (last visited Apr. 15, 2008). A multidisciplinary organization, its membership, which currently stands near 8,000 persons, includes researchers, academicians, clinicians, laboratory practice professionals, genetic counselors, nurses, and other persons involved in human genetics. Id. The three principal objectives of the ASHG are: (1) providing a forum for the sharing of research findings; (2) educating health professionals, legislators, health policy makers, and the public about human genetics; and (3) facilitating interaction between geneticists and other communities. See American Society of Human Genetics, ASHG Fact Sheet, http://www.ashg.org/press/factsheet.shtml (last visited Apr. 15, 2008).
106. Incorporated in 1991, the American College of Medical Genetics (ACMG) is an organization that, on its website, posts the following purpose: "To make genetic services available to and improve the health of the public, the ACMG promotes the development and implementation of methods to diagnose, treat and prevent genetic disease." American College of Medical Genetics, http://www.acmg.net (last visited Apr. 15, 2008) (follow "About ACMG" hyperlink). Members of the organization include genetic counselors, health care professionals committed to the practice of medical genetics, and the following types of geneticists: biomedical, clinical, cytogenic, medical, and molecular. See id.
107. ASHG/ACMG Boards of Directors, Points to Consider: Ethical, Legal, and Psychosocial Implications of Genetic Testing in Children and Adolescents, 57 AM. J. HUM. GENETICS 1233 (1995). A subcommittee of the ASHG Social Issues Committee drafted this report. Id. at 1239. In addition to being adopted by the ASHG and the ACMG, this report has received endorsements from the Alliance of Genetic Support Groups, Council of Regional Networks for Genetic Services, International Society of Nurses in Genetics, National Society of Genetic Counselors, and American Academy of Pediatrics. Id.
108. Id. at 1233. At the base of the this Report are the following social concepts: (1) The promotion of the child's well-being should be the central goal of genetic testing; (2) As the child is part of a network of familial relationships, any conflicts that may arise should be dealt with in a collaborative rather than an adversarial manner; and (3) As the child develops cognitively and morally, parents and professionals should be aware of his or her growing interest and ability to participate in the decision-making process regarding his or her own well-being. Id.
109. Id. The Report also notes that in the event that the balance between potential harms and potential benefits is, itself, unknown, the physician or other health professional should work with the families to reach a decision that best meets their unique circumstances. Id.
110. Id. at 1234-35 (characterizing these benefits as Medical Issues).
111. Id. at 1235-36 (characterizing these benefits as Psychosocial Issues).
112. Id. at 1234-35 (characterizing these harms as Medical Issues).
113. Id. at 1235-36 (characterizing these harms as Psychosocial Issues).
114. See Safer v. Estate of Pate, 677 A.2d 1188, 1192 (N.J. 1996).
115. Social Issues Subcomm. on Familial Disclosure, ASHG, Professional Disclosure of Familial Genetic Information, 62 AM. J. HUM. GENETICS 474, 474 (1998).
116. Id. at 478.
117. Id. at 475. The four paradigms are as follows: (1) Absolute confidentiality; (2) 1983 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (lists four circumstances under which disclosure is permissible); (3) Genetic Miranda warning; and (4) Duty to warn as a ethical imperative. See id.
118. Id. at 476. According to this policy article, "[although the majority of foreign jurisdictions... maintain that confidentiality must be ensured and protected, the majority are also in favor of limited disclosure of genetic test results (without the consent of the patient) in cases where the harm to at-risk relatives is grave and imminent and where disclosure of information could result in effective intervention." Id. at 475-76.
119. Id. at 477.
120. See id.
121. Id. at 474. This policy article defines at-risk relatives as those persons who "possess genetic relatedness, are identifiable, include[ing] siblings and their children, and may also extend to identifiable parents, cousins, aunts, and uncles whom the health-care professional can reasonably contact." Id.
122. See id.
123. Erde et al., supra note 1, at 615.
124. Id.
125. As a caveat, the author of this Comment lacks training in any area of the medical field. This fact-pattern is entirely fictional; all articulated advances in the area of Alzheimer's research and treatment, and the lifting of the federal funding ban on stem-cell research, are wishful thinking on the part of the author.