Issues and Trends in Medical Malpractice - Episode 5
Simon D. Murray, MD: This brings up a case that recently I read about in JAMA about a doctor who prescribed psychotropic medicines for a woman for 25 years, and she was involved in a motor vehicle accident in which a woman riding a bicycle was killed.
Glen Bergenfield: Right.
Simon D. Murray, MD: The estate sued the driver, but I don’t think the driver had good insurance, and they decided to sue the doctor who had prescribed the medicine.
Glen Bergenfield: Right.
Simon D. Murray, MD: That case went to the lower court and was thrown out, I believe, and then went to the appellate court. Can you tell us about that case and why it’s significant?
Glen Bergenfield: Yes. It’s the Vizzoni v Mulford-Dera case. I’m going to take a step back. There are a lot of states that have cases—New Jersey is 1 of them—in which doctors can be liable to people other than their patients. It’s clear that they’re liable to their patients for making a medical malpractice type of mistake. However, it’s been argued by amicus briefs on behalf of the doctors and by the AMA [American Medical Association] and state advocacy AMA that we can’t extend the duty of care to people who are not the patient of the doctor.
There are good reasons why that might be so, but in general, the law is moving in the direction away from what the doctors want. I can give an example, and we’ll get back to the Vizzoni case if you like.
There’s a case in Connecticut in which a man went to the doctor to get tested for herpes. His potential lover was waiting for the results, and he wanted to tell her the truth about whether he had it. The doctor tested him and apparently said, “You don’t have it.” The test results were actually positive. He did have it, and he communicated herpes to his lover. The question was, can his lover sue the doctor for this?
There was a great hue and cry from the doctors and from the medical establishment saying, “That can’t be. We can’t be responsible for every lover that this guy now infects.” It’s a good argument, but it’s just not the winner. The law seems to be changing pretty clearly, at least for communicable diseases. The doctors can be responsible for their own negligence when it’s foreseeable, like if somebody is coming in for a test for a sexually transmitted disease and is going to have a lover.
There are a lot of questions that are left unanswered by that. This doctor didn’t do this, but what is the doctor supposed to do if he tells the patient: “You have herpes”? Does he have to violate HIPPA [Health Insurance Portability and Accountability Act] and medical procedure, find the lover somehow, and say, “Your guy’s got herpes, and you should know that?”
There was a Supreme Court case in New Jersey in the 1970s about a grandfather who was tested for tuberculosis. He was wrongly told that he didn’t have it. He came home and kissed his grandchildren and his daughter-in-law, and he gave them all tuberculosis.
That’s a pretty case in a lot of ways, if you think about it and put aside the fact that you’re a doctor and that I’m a lawyer here, and say, “Well, what, what could the court possibly have decided here?” They’re going to limit the doctor’s liability just to grandpa, who has tuberculosis. So there’s no case. But what has grandpa done? The worst thing he can think of is infect his grandchildren, and he did it because of the doctor’s negligence.
That seems like a pretty easy case to me. It creates issues for doctors, and it sends us down a road on which the rules are uncertain. It’s pretty clear the law is heading in that direction. In Massachusetts, New Jersey, Connecticut, and New York, there are cases in which they’re saying doctors are responsible, particularly in communicable diseases, psychiatric illnesses, and perhaps with car accidents, that the doctors can be liable to people other than their patients.
Simon D. Murray, MD: It’s no coincidence that those states you mentioned are the states with the highest rates of malpractice, by the way.
Glen Bergenfield: That may be.
Simon D. Murray, MD: New Jersey, Connecticut, Massachusetts, New York.
Glen Bergenfield: I should have picked Texas or something. I don’t think the doctors are going to be able to prove, the way the AMA briefs tried to argue, that there’s a basis for saying the doctor is not responsible if he misadvises about tuberculosis and you give your grandchildren tuberculosis. I don’t think the doctor or someone is going to get off the hook by saying, “That wasn’t my patient.”
Simon D. Murray, MD: I heard you say that’s 1 of the tenets required to have malpractice. You have to have a duty to a patient.
Glen Bergenfield: You have to have a duty, and the way the doctors would define duty is duty to the patient. You’re right, but that’s not how the courts define it. Duty is 1 of those things. I don’t want to get too technical about the law stuff, because doctors are listening to this, but the duty is a question of public policy. It can be changed. You can say it’s healthy for us to change our notion of who a doctor has a duty to as genetic testing changes and as the ability to test for diseases changes. The purpose of tort law is 2-fold. 1) To compensate somebody who’s been harmed by a mistake. That’s the easy 1. That’s usually the patient. The second part is, how do we discourage bad behavior? How do we discourage negligence if somebody says, “You don’t have tuberculosis, grandpa,” and he does? One of the ways to discourage it is to make sure all the people who’ve been harmed by that bad advice are compensated and get the doctors to—if I dare say this to you—pay better attention to giving information like that.
Simon D. Murray, MD: I don’t disagree with you. I don’t disagree. I’m just talking about the legal principle. That opens the door for a whole variety of problems for doctors.
Glen Bergenfield: It does, no question.
Simon D. Murray, MD: We may be reluctant to treat patients with medicines that may be sedating because of the fear that someday they may get in a car accident. There’s a whole host of scenarios you can imagine.
Glen Bergenfield: Sure. Genetic testing raises a lot of it too. There’s a cystic fibrosis case. Do I have to tell the parents of the kid who’s got cystic fibrosis that if they have another child, the child’s going to have cystic fibrosis? That’s not my patient; my patient is the child. Do I have to tell? There’s a case on that in New Jersey. The question is, do we want the doctor to tell them? I think the answer is yes.
The way that doctors can at least be somewhat protected is by not making that mistake. It does subject them to more damages, more liability, and more problems when you expand the class of people who can sue the doctor for making a mistake. However, do we want to do the other thing and say, “Hey grandpa, you’re on your own. You gave your grandchildren tuberculosis. The doctor gave you bad advice. That’s why you did it, but there’s no remedy for that. That’s your problem.”
Simon D. Murray, MD: Yes. Maybe he feels bad about it. Maybe that’s enough. I don’t think so.
Glen Bergenfield: OK. I don’t want you on my next jury.
Simon D. Murray, MD: Going back to the Vizzoni case, what was the adjudication of the case?
Glen Bergenfield: I think there was some celebration in the medical community that the Vizzoni case was won by the doctor—Dr Stefan Lerner, I think it was.
Simon D. Murray, MD: It was.
Glen Bergenfield: The problem is that if you read the case, it was not a victory for the principle that a doctor can’t be liable to a bicyclist who isn’t his patient and gets hit by a car driven by the person who was his patient. In fact, the case said, “That’s the easy part of this case.” They call it social host liability. If you get your friends drunk and then they get in their car, you can be liable, just as there’s Dram Shop liability for a bar doing that. We want to make sure we discourage people from getting their friends drunk and sending them out in cars. Doctors have to do the same thing. We want to discourage that.
It’s an easy leap here to say that Dr Lerner would have been liable to this bicyclist, but then they said, “There’s absolutely no proof in this case that the medicines caused her to ride directly into the bicyclist and kill her.” It was a failure of the third element that I was talking about before, which is proximate cause. There is a duty to the bicyclist, but in this case, you weren’t able to prove that the doctor’s alleged negligence in not telling his patient, “Don’t drive when I’m giving you Cymbalta and these other drugs,” was the cause of the accident.
Simon D. Murray, MD: Yes. The doctor won, but the battle might have been lost, right?
Glen Bergenfield: Yes, I think the battle is lost. The question is about the contours of what doctors have to be libel to others for. It’s clear that they are, in some circumstances. One of the questions that’s going to come up is whether it’s enough for the doctor to tell the patient. In the cases like the tuberculosis case, does he have to just tell grandpa correctly? In the herpes case, if he tells the patient: “You’ve got this,” does that take care of the duty? There’s a case in New Jersey that says, “We’re not sure. We don’t know if that’s enough.” That creates other problems for doctors. Do they go out and find the other person and tell them something private that they’re not allowed to tell? How do they take care of the duty? Is it enough to tell the patient? It’s an unresolved question in New Jersey and probably throughout the nation.
Simon D. Murray, MD: Yes. I’ll tell you an interesting case that happened to me, and it was a dilemma. I was the director of a clinic in a hospital. I became friends with the nurse who worked with me, but she was the nurse who worked in the clinic. Her husband came as a patient. She happened to be pregnant, and he told me that he was having an affair with somebody else and that he had chlamydia. He asked what he should do.
This woman, his wife, is pregnant, but he had this affair, and he’s got a sexually transmitted disease. I must say that this was 25 years ago. I said, “Well, you should tell her. Your duty is to tell your wife immediately that she could be infected, and she’s got to get checked out.” He refused. And I said, “You have to. You have to do that; that’s the right thing to do. If you don’t tell her, I will.” He said, “If you do, then I’ll sue you, because you violated my confidentiality.”
Glen Bergenfield: He wasn’t seeing you as a patient, right?
Simon D. Murray, MD: He saw me as a patient.
Glen Bergenfield: Oh, he was your patient.
Simon D. Murray, MD: He was a patient. He came to the clinic as a patient.
Glen Bergenfield: To be treated for chlamydia?
Simon D. Murray, MD: Yes, and told me, “I’m having an affair with somebody, and I must have gotten it from her. But I had sex with my wife after the fact, and I’m worried about that. What do you think I should do?” I said, “Well, you have to talk to your wife immediately and tell her.” He said, “I’m not doing that. I’m not doing it.” I said, “Then I will.” And then he said, “I’ll sue you if you do that.” I thought about it, and I said, “He’s probably right. It probably is a violation.” I don’t think we even had HIPPA in those days. I don’t know. I didn’t do anything. The only thing I did was say to his wife, “Make sure your gynecologist checks you for venereal disease, just to be thorough.” That’s all I did. I don’t know how that would be handled today.
Glen Bergenfield: Did she do that? Did she get checked?
Simon D. Murray, MD: I think she did. I really don’t remember whatever happened, but that was a terrible situation to be in.
Glen Bergenfield: For professionals, doctors, and lawyers, the burden of secrets—you’re in those situations sometimes, and there’s not really a great answer.
Simon D. Murray, MD: I don’t know if the law is any different now, and if that would require me to report them. It certainly would require me to report if the wife had said, “My husband is sexually abusing my kid.”
Glen Bergenfield: Right.
Simon D. Murray, MD: In that circumstance, I know that I have to report it.
Glen Bergenfield: Right. There’s a statute on that. But on chlamydia, I don’t think that there’s a statute that you have to tell.
Simon D. Murray, MD: I really don’t know what the right answer would be. He could have sued me for telling her.
Glen Bergenfield: He probably could have sued, at least under HIPPA, for a technical violation. I’ll just tell you, it’s not a very good case. It’s not just because we’re friends, but I would take your case and we would win it—if not 100 times out of 100, then pretty darn close.
Simon D. Murray, MD: The jury would be sympathetic.
Glen Bergenfield: Yes, and they wouldn’t be too sympathetic to him, if you think about it.
Simon D. Murray, MD: Yes. They were pretty odd circumstances that would cause a lot of angst.
Glen Bergenfield: That does happen. We get some secrets that we wish we didn’t have.
Transcript edited for clarity.