An imminent, unidentifiable victim: does HIV require a duty to warn?

• Author: Hollins, Janet
• Position: California

In 1995 in Reisner v. Regents of the University of California, a California Court of Appeal allowed a non-patient plaintiff to pursue a claim against a doctor for medical malpractice.(1)

Daniel Reisner's version of the story starts when Jennifer Lawson, a 12-year-old girl, received a blood transfusion in 1985. The physician, Eric Fonklesrud, and the UCLA Hospital became aware the day after the transfusion that the blood was contaminated with the human immunodeficiency virus (HIV), and they informed the donor. But they did not inform Jennifer or her parents. Dr. Fonklesrud continued to treat Jennifer for the next five years for purposes unrelated to HIV but never informed Jennifer or her parents during that period of the contaminated blood. When she was 15, Jennifer had sexual relationships with Daniel Reisner, and in 1990, five years after her blood transfusion, Jennifer was diagnosed with acquired immune deficiency syndrome (AIDS), which was determined to be a result of the 1985 transfusion. One month later, she died. Jennifer's parents informed Daniel, who on being tested was found to be infected with HIV.

The story enters the court system when Daniel sued Dr. Fonklesrud and the hospital for negligence in failing to inform Jennifer that she had been exposed to contaminated blood. Specifically, he claimed that no one had told Jennifer or her parents that she might develop AIDS, and no one had advised them about precautions Jennifer should have taken to prevent passing the virus to others. As a result, Daniel asserted, the defendants should be held liable for his injury proximately caused by this negligence, although the doctor neither treated him nor knew of his existence.

The conceptual challenge presented by this case is not that Daniel was allowed to proceed in his lawsuit. Rather it concerns the rationale applied by the court in allowing the cause of action.

In this tragic case the court applied, in part, analysis from Tarasoff v. Regents of the University of California,(2) a decision that established a therapist's duty to warn readily identifiable third parties of a threat from a dangerous patient. In Reisner, the court stated that Tarasoff dictated the result obtained because of a particular phrase used by the Tarasoff court in defining the extent of the duty to warn--a doctor has a duty to warn "others likely to apprise the victim of danger." In Reisner, the court identified the minor patient and her parents as the "others likely to apprise" the non-patient plaintiff. While the outcome of Reisner may be correct, the court's analysis is suspect.

RELIANCE ON TARASOFF

1. Duty to Warn

   Reversing the trial court, the Court of Appeal held that Daniel stated a cause of action by alleging that the defendants breached a duty to Daniel, an unidentifiable third party. In its analysis, the court emphasized the legal principles illustrated in three cases. Tarasoff, the first and most prominent of these three cases, enunciated the legal theory of failure to warn, the premise of the plaintiff's claim.

2. Tarasoff

   Generally, the common law has not imposed a duty to control the conduct of another, or to warn those endangered by such conduct. However, if a defendant bears some special relationship to a dangerous person or to a potential victim, and avoiding foreseeable harm would require a defendant engage in conduct to protect or warn others, then the common law has recognized a duty.(3) Many relationships are considered special in tort law, including physician and patient and extended to psychotherapist and patient.

   In Tarasoff, the Supreme Court of California developed the common law duty of a treating psychotherapist to warn others of dangers posed by a patient. The duty was derived from existing law, although not recognized explicitly prior to Tarasoff. The facts of Tarasoff illuminate the extent of the duty arising from a special relationship.

   Tatiana Tarasoff was killed by Prosenjit Poddar, a psychotherapy patient of the defendant psychologists at a school counseling center. Poddar had indicated to his primary therapist an intent to kill an "unnamed girl" who nevertheless was "readily identifiable" as Tatiana by Poddar's therapist. Poddar communicated this threat to the therapist two months before he killed Tatiana. The therapist did not warn Tatiana or her parents. Although the therapist had engaged the campus police to detain Poddar, they released him soon after his detention because he appeared to the police to be rational.

   The California Supreme Court held that the therapist had a duty to warn Tatiana's parents of Poddar's serious threats, and that the therapist's failure to warn could result in negligence liability. Although critics characterized this duty as a new duty that might change the nature of the psychotherapy relationship, the court indicated that the decision stood on solid precedent.

   Viewed from the court's perspective, the decision did not place a wholly new duty on therapists. It relied on Section 1714 of the California Civil Code, which states, "Everyone is responsible . . . for an injury occasioned to another by his want of ordinary care...." In determining the duty that the therapist owed to Tatiana, the court balanced several considerations, enumerating:

   the foreseeability of harm to the plaintiff, the

   degree of certainty that the plaintiff suffered

   injury, the closeness of the connection between

   the defendant's conduct and the injury

   suffered, the moral blame attached to the

   defendant's conduct, the policy of preventing

   future harm, the extent of the burden to the

   defendant and consequences to the community

   of imposing a duty to exercise care with

   resulting liability for breach, and the availability,

   cost and prevalence of insurance for

   the risk involved.(4)

   The court stated that foreseeability of harm to a plaintiff was the most important consideration to be weighed when determining a defendant's duty.(5) Consequently, the court viewed the identifiability of the potential victim as only one part of that. The court stated that a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous."

   The duty to warn could attach without knowledge of the identity of a potential plaintiff. The identity of the victim factor, however, becomes the focus of later interpretations of the duty to warn that seem inconsistent with the general spirit of the decision in Tarasoff.(6)

   The court relied on the illustrations in the two-part Comment c to Section 319 of the Restatement (Second) of Torts in its analysis.(7) In the first part, a hospital negligently fails to diagnose or treat properly a patient with a communicable disease. In the second part, the hospital negligently allows a delirious smallpox patient to escape. Both situations depict a scenario in which the hospital engaged in negligent conduct involving its patient that proximately caused harm to third parties. Neither illustration suggests that a duty to warn would have been a reasonable response to prevent the harm to third parties. Rather, the hospital failed in its duty to its patient, and the consequences of that failure extended the risk to foreseeable others.

   Because of the special relationship between hospital and patient, a duty to act reasonably can be imposed on the hospital to protect the public from the disease. On this premise, the Tarasoff court determined that the relationship between therapist and dangerous patient supported a duty of care toward the ultimate victim.

3. Special Relationship Exception

   The Tarasoff court examined cases from California and other jurisdictions to find the parameters of liability for failure to warn. Two factors predominated the analysis. First, the court noted that doctors bear some general duties to advise of the dangers of treatment. In this sense, a doctor bears a duty to act according to the standards of the profession by warning the patient of treatment dangers. Second, the court recognized that the California failure to warn decisions before Tarasoff involved cases in which a special relationship existed between the defendant and both the dangerous party and the victim.(8) However, the court noted, other jurisdictions did not require this dual relationship.(9) Following this latter approach, the court reasoned that the exceptional duty extends beyond these situations to the special relationship between therapist and patient. The court held this relationship allowed an imposition of affirmative duties toward a third party.

   To define reasonable care in this type of relationship, the court stated that a therapist must exercise the care and skill that therapists in good standing would have exercised in that particular situation. If, as in Tarasoff, a patient poses a serious danger of violence to another person, and the therapist does or should have predicted this danger, then the therapist should exercise reasonable care to protect the potential victim.

   A defendant can discharge that duty by exercising care viewed as reasonable under the given circumstances. Moreover, a defendant's conduct will be measured by traditional negligence standards of reasonable care. The court suggested that reasonable care in Tarasoff might have been to call the victim or the police or "others likely to apprise the victim" of danger.

   Tarasoff expanded the known parameters of previous liability for negligence in the therapist-patient relationship. However, it did not expand the basis of traditional tort liability. Rather, the court placed the foreseeability of harm to a third party neither personally known nor in relation to the defendant into the traditional balancing equation. Although the confidential relationship between therapist and patient might be compromised by an obligation to disclose information, the gravity and likelihood of harm to the victim warranted a disclosure. The court stated:

   We conclude...