DiMarco v. Lynch Homes-Chester County, Inc.
583 A.2d 422, 525 Pa. 558 (1990)
Rule of Law:
A physician owes a duty of care to a non-patient third party who contracts a communicable disease from the patient, when the physician negligently advises the patient on how to prevent its transmission. This duty extends to any third person within the foreseeable orbit of risk of harm, such as the patient's intimate partners.
Facts:
- Janet Viscichini, a blood technician, was accidentally punctured by a needle used on a patient who was a carrier of hepatitis.
- Viscichini sought treatment from Doctors Giunta and Alwine.
- The doctors advised Viscichini that if she remained symptom-free for six weeks, she would not have been infected by the hepatitis virus.
- The doctors did not advise Viscichini to refrain from sexual relations for any specific period.
- Viscichini abstained from sexual relations for eight weeks, two weeks longer than advised, and then resumed relations with her partner, Joseph DiMarco, as she had no symptoms.
- Subsequently, Viscichini was diagnosed with hepatitis B.
- Shortly after, DiMarco was also diagnosed with hepatitis B.
Procedural Posture:
- Joseph DiMarco brought a negligence action against Doctors Giunta and Alwine in the Court of Common Pleas of Philadelphia County (a state trial court).
- The trial court granted the doctors' preliminary objections and dismissed DiMarco's complaint, holding that the doctors owed no duty of care to DiMarco due to a lack of privity.
- DiMarco (as appellant) appealed the dismissal to the Superior Court of Pennsylvania (an intermediate appellate court).
- The Superior Court reversed the trial court's decision, finding that the doctors did have a duty of care, and remanded the case for trial.
- The doctors (as appellants) then filed a petition for allowance of appeal to the Supreme Court of Pennsylvania (the state's highest court), which was granted.
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Issue:
Does a physician owe a duty of care to a non-patient third party who contracts a communicable disease from the patient as a result of the physician's negligent advice to the patient regarding the prevention of transmission?
Opinions:
Majority - Larsen, J.
Yes, a physician owes a duty of care to a foreseeable third party in these circumstances. When a physician undertakes to render services to a patient with a communicable disease, the physician should recognize that this advice is necessary for the protection of third persons. The court found that under the Restatement (Second) of Torts § 324A(c), a cause of action exists because the harm was suffered due to the third party's (via the patient's) reliance on the physician's undertaking. The physician's duty extends to those 'within the foreseeable orbit of risk of harm,' which includes any person who is physically intimate with the patient, regardless of marital status. Public policy supports this duty, as physicians are the first line of defense in preventing the spread of communicable diseases.
Dissenting - Flaherty, J.
No, a physician does not owe a duty of care to the third party. The majority ignores controlling precedent from Guy v. Liederbach, which holds that for professional negligence, liability to a third party requires either privity (a direct professional-client relationship) or a specific undertaking by the professional for the third party's benefit. Neither was present here, as the doctors did not know of DiMarco's existence nor perform any service for him. Expanding liability based on mere foreseeability is dangerous, as it exposes professionals to unpredictable liability from an unknown number of third parties and may perversely incentivize professionals to make narrower inquiries to avoid learning information that could create such duties.
Analysis:
This decision significantly expands the scope of a physician's duty of care beyond the immediate patient in the context of communicable diseases. By rejecting a strict privity requirement in favor of a foreseeability standard based on the Restatement, the court prioritized public health concerns over traditional limitations on professional liability. The ruling establishes that a physician's negligent advice can create liability to non-patients who are foreseeably harmed, such as sexual partners. This precedent creates a potential conflict with prior case law that required privity for professional malpractice claims and will likely influence how courts approach duty of care in other situations where a professional's negligence poses a direct, foreseeable risk to an identifiable class of third parties.
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