Tresemer v. Barke
12 A.L.R. 4th 27, 150 Cal. Rptr. 384, 86 Cal. App. 3d 656 (1978)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A physician has a legal duty to warn a patient of the dangerous effects of a medical device prescribed and inserted by that physician when the physician subsequently acquires knowledge of the device's hazards, even after the physician-patient relationship has ended for that specific treatment.
Facts:
- In August 1972, Morton Barke, M.D., inserted a Dalkon Shield intrauterine device (IUD) into Donna Sue Tresemer for contraceptive purposes.
- At the time of insertion, the Dalkon Shield was widely considered a popular, safe, and effective medical device.
- Approximately two years later, around mid-1974, serious safety questions about the Dalkon Shield were raised and acknowledged within the medical community.
- Shortly after these safety concerns became known, the Dalkon Shield was withdrawn from the market.
- On April 17, 1975, a different physician, Mario De Lara, M.D., attempted to remove the device from Tresemer.
- On May 5, 1975, Tresemer consulted a third physician, Dr. Michael Fahey, at which point she alleges she first discovered that the Dalkon Shield was the cause of her injuries.
Procedural Posture:
- Donna Sue Tresemer (plaintiff) filed an action for damages against Morton Barke, M.D. (defendant) and others on April 12, 1976, in a state trial court.
- After demurrers were sustained to her first three complaints, Tresemer filed a third amended complaint alleging willful misconduct and medical malpractice against Barke.
- Barke moved for summary judgment in the trial court, arguing that the statute of limitations barred the action and that the action was without merit.
- Tresemer filed no written opposition to the motion for summary judgment.
- The trial court granted summary judgment in favor of Barke.
- Tresemer (appellant) appealed the trial court's grant of summary judgment to the California Court of Appeal, an intermediate appellate court, with Barke as the appellee.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a physician have a continuing duty to warn a patient of the dangerous effects of a medical device when the physician learns of such dangers subsequent to the patient's treatment?
Opinions:
Majority - Stephens, Acting P. J.
Yes. A physician has a continuing duty to warn a patient about subsequently discovered dangers of a medical device used in treatment. This duty arises from the confidential relationship between a doctor and patient and exists as a separate cause of action from any negligence during the initial treatment. The court reasoned that legal duties are imposed based on policy considerations, including the foreseeability of harm, the special relationship between the parties, and the public policy of preventing future harm. The court distinguished this 'failure to warn' cause of action from a typical medical malpractice claim, noting it is based on a failure to act (nonfeasance) after the defendant's prior, innocent conduct created an unreasonable risk of harm. Because Dr. Barke's motion for summary judgment did not negate this potential duty to warn, triable issues of fact remain.
Analysis:
This case establishes a significant post-treatment duty for physicians, extending their responsibility beyond the point of direct care. It imposes an affirmative duty on a doctor to warn a former patient upon learning that a previously administered treatment or device poses a newly discovered risk. This decision expands traditional notions of medical duty from acts of misfeasance (negligent action) to include liability for nonfeasance (failure to act) where a special relationship created the initial risk, even if the initial act was non-negligent. It will require physicians and healthcare providers to consider systems for notifying former patients of latent dangers, potentially impacting record-keeping practices and increasing exposure to liability long after treatment has concluded.
