Second Department Further Narrows Scope Of Medical Malpractice Actions Asserted By Nonpatients

Today the Second Department issued an interesting decision in the case Fox v. Marshall.  The Fox case arose out of the murder of Denice Fox by her neighbor the defendant Evan Marshall.  Marshall had a history of substance abuse and psychiatric problems and had been treated numerous times at different drug abuse and mental health facilities.  The plaintiff alleges that on the day before the murder, Marshall, who had voluntarily admitted himself to defendant SLS Residential Inc.'s substance abuse and mental health facility, received a pass to leave the facility to visit his mother.  Marshall allegedly then purchased cocaine and spent the night at his mother's house.  The next morning after allegedly driving his car into a woman jogging, he forced his way into Fox's house and killed her.  

The plaintiff commenced an action in negligence and medical malpractice against SLS, its related corporate entities and various employees of those entities, as well as against Marshall and his mother.  On the medical malpractice action against SLS and a psychiatrist that worked for SLS, the plaintiff claimed that they breached their duty to the public by failing to properly diagnose Marshall and giving him a pass to leave the facility.  

Each of the defendants moved to dismiss the complaint.  The Supreme Court denied the motions holding that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient's actions and has knowledge that the patient may be a danger to others.  The Second Department modified dismissing only the medical malpractice causes of action and cause of action against Marshall's mother.

With respect to the medical malpractice cause of action, the Court assessed a physician's duty of care in light of it previous decision in Donohue v. Copiague Union Free School Dist. (64 A.D.2d 29 [2nd Dept. 1978]).  Based on the duty analysis set forth in Donohue, the Court held that extending "a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty."  Furthermore according to the Court, "'[w]hile moral and logical judgments are significant components of the [duty] analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs [are limited] to a controllable degree'. Therefore, regardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large." (internal citations omitted).

Notably, last year we published an article in the New York Law Journal titled, "Defining the Duty of a Physician: Recent Developments" (Sept. 8, 2010).  In that article we discussed several recent cases that had addressed the issue of duty in a medical malpractice case.  In particular, we argued that the approach taken by the First Department in Cregan v. Sachs (65 A.D.3d 101 [1st Dept. 2009]) failed to properly treat the issue of duty as a legal question to be initially decided by the court.  In contrast, today's Fox decision properly recognizes that the issue of duty is a legal question for the court and adopted an analytical approach that coincides very nicely with the analysis we advocated in our article.   

It is also notable that the Court's implicit restriction of a doctor's duty to third-parties as limited to when those third parties are family members is similar to a limitation used by the Court of Appeals in Laratro v. City of New York (8 N.Y.3d 79 [2006]).  In Laratro, at issue was whether the City had a special relationship with the plaintiff sufficient to give rise to a duty of care where a co-worker called 911 on behalf of the incapacitated plaintiff and received assurances from emergency personnel that help was on the way.  The Court of Appeals held that while a special relationship can be created where the caller is not the plaintiff, those circumstances should be limited to where the caller is a family member.