A patient you never saw can sue you

July 20, 2007

Malpractice Consult

Key Points

A person who was never your patient can sue you and win, if they were infected by one of your patients whom you've treated for a dangerous communicable disease.

For example, if your patient tests positive for hepatitis C or HIV (or, as happened recently in the case of Andrew Speaker, a virulent form of tuberculosis) it's your duty to advise him of that fact and to counsel him on how to avoid infecting others. If you fail to do both and the patient passes the illness to a third party, that person can sue you for malpractice.

In deciding whether you'll be held liable for injury to someone whom you've never met, a court will rely on "foreseeability." If it was foreseeable that an uninformed patient could infect a third party, you might be considered responsible if the patient does just that.

The message from the courts is clear: In addition to the traditional tasks of diagnosis, treatment, and informed consent, a physician, when treating a patient who has a contagious disease, must advise him to take certain sanitary measures and possibly-depending on the circumstances-to remain quarantined for a period of time, practice "safe sex," or abstain from sex.

Of course, the advice and counseling you'll give to a sexually active, 25-year-old HIV-positive man will differ from what you'll tell a 40-year-old food-handler with hepatitis C. If this is something you'd rather not deal with yourself, it's okay to ask an appropriately trained member of your clinical staff to provide the necessary guidance and recommendations. Or refer the patient to an outside counselor. (Your state's department of health can provide names and contact information.) However, if the patient fails to make an appointment with the counselor, an innocent third party who is subsequently infected might convince a jury that you're liable, especially if you or a member of your staff could have readily provided the necessary counseling.

No matter what your course of action, be sure to document it carefully. The record should indicate in detail what you or a staff member told the patient. If he was referred elsewhere, document the reason why and indicate what steps you took to follow up and ensure that the counseling took place. When patients won't cooperate, be sure to document, with specificity, their refusal to obtain counseling, and the fact that you warned them to avoid behavior that could injure others.

The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, and Lake Success, NY. He can be reached by e-mail at kern@drlaw.com
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This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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