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UPDATE – Superior Court Clarifies Ruling Regarding Third-Party Beneficiaries of Physician-Patient Relationship

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The following is an update to an earlier posting, found HERE.

In an unreported memorandum opinion, Judge J. Brian Johnson denied a defendant physician’s motion for summary judgment and found that the defendant physician owed a duty of care to a non-patient where the disease at issue was potentially deadly absent medical intervention and is inherited 50% of the time by the patient’s children.  In Polaski v. Whitson,[1] the decedent’s estate brought a medical malpractice suit against the defendant physician, Dr. Whitson, who treated the decedent’s father, Raymond Polaski.  In 2008, Mr. Polaski underwent an electrocardiogram (EKG) as part of a physical conducted by Dr. Whitson.  Plaintiffs argued that the EKG should have revealed certain results that would have led Dr. Whitson to order additional testing, which would have likely uncovered that Mr. Polaski suffered from hypertrophic cardiomyopathy.  Hypertrophic cardiomyopathy is the heredity condition that ultimately caused the death of the decedent, Mr. Polaski’s son.  Plaintiffs argued that, had Dr. Whitson ordered additional testing and diagnosed Mr. Polaski with hypertrophic cardiomyopathy, he would have also informed Mr. Polaski of the need to inform his children, including the decedent, regarding the risk of inheriting the genetic condition from Mr. Polaski.

In reaching his decision, Judge Johnson looked to the following factors enumerated in Althaus ex rel. Althaus v. Cohen:[2] (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.  The court also compared prior appellate court cases including Matharu v. Muir[3] and Seebold v. Prison Health Services[4], and found that a duty of care is owed to non-patients “as the risk of harm to those third persons increases in severity and foreseeability and the class of third persons falling within the potential orbit of harm becomes increasingly focused, foreseeable and identifiable.”  In doing so, the court found that Dr. Whitson owed a duty to advise the decedent, a non-patient who suffered from hypertrophic cardiomyopathy, stating that “the nature of the risk is highly foreseeable in the medical community and it is essential that the information be disseminated by the physician.”

The ruling in Polaski, as well as the appellate court cases, demonstrates the case-by-case nature of the determination regarding third-party beneficiaries and a duty of care owed by a defendant physician.  It is unclear whether the appellate courts will impose a definitive rule in this regard, but in the meantime, a duty of care owed by a physician to a non-patient will likely be imposed when the risk of harm is foreseeable and identifiable.

[1] Court of Common Pleas, Lehigh County No. 2011-C-2583 (memorandum opinion, June 30, 2015).

[2] 562 Pa. 547 (2000) (holding that a psychiatrist does not owe a duty of care to non-patient parents of a child patient who the child accused of sexual molestation and later rescinded).

[3] 86 A.3d 250 (Pa. Super. Ct. 2014).

[4] 618 Pa. 632 (2012).

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