by Richard W. Millar, Jr.
Mr. Thomas Jones 123 Main Street Anytown, New York
Dear Mr. Jones:
I am afraid I have what from your perspective would be considered bad news, worse news, and perhaps other news.
The bad news is that I have been fooling around with your wife. The worse news is that I have herpes.
As far as the other news is concerned, I can tell you that your wife is mentally healthy. I am competent to make that diagnosis because I am her psychiatrist.
Very truly yours,
John Smith, M.D.
Well that letter is completely fictitious. Not only that, I made it up. No self-respecting psychiatrist is likely to write such a letter. First, he would get lawyered up and the resulting correspondence would look something like this. . . .
Please be advised that this firm represents Dr. John Smith, a psychiatrist in your area. Pursuant to recent case law, we inform you that Dr. Smith is suffering from the herpes simplex virus.
Joe Lawyer
Dear Mr. Lawyer:
I received your curious letter. Who is Dr. Smith and why are you telling me that he has herpes?
Thomas Jones
Thank you for your letter. Unfortunately, the identity of Dr. Smith’s patients and the nature of his therapeutic treatments are privileged from disclosure.
Have a nice day.
Absurd? Of course. Could never happen? Of course not. Yet . . .
One Carl Levine sued a Dr. Robert Werboff in Westchester County (New York) Supreme Court for Intentional Infliction of Emotional Distress, negligence, fraud, misrepresentation, gross negligence, and malpractice. Mr. Levine claimed he was injured as a result of the psychiatrist’s sexual relations with his (Mr. Levine’s) wife whilst infected with herpes and in, I should add, the course of treatment. The theory was that the doctor knew he had herpes, knew that his patient was married, and therefore had a duty to disclose his condition to her spouse or take steps to prevent transmission of the disease. The alleged sex was equally allegedly unprotected causing the wife to allegedly become infected and ultimately, allegedly, the plaintiff Mr. Levine.
The case came before Justice Nicholas Cotabella on a motion to dismiss for failure to state a cause of action, hence all the “allegedlies.”
The court had little trouble with the malpractice claim as the wife, not Mr. Levine, was the patient, holding that there was no basis to expand the doctor-patient relationship to include her husband. The court also dismissed the fraud claims as no representations were made to Mr. Levine and there was nothing on which he could have relied. No surprises there.
However, the court denied the motion to dismiss the negligence related counts, finding that the psychiatrist had a duty of care to the spouse of his patient to warn or take precautions to prevent the spread of the disease.
“The extension here to a spouse is a narrowly defined class of persons, not a broader, undefined community at large. There is nothing unfair about extending such a duty of care to a spouse of the infected person.”
So let me see if I got this right. A doctor probably has a duty not to have sex with his patient, but if he does, he does not have a duty to warn the spouse about that activity even if the doctor has herpes unless no precautionary steps are taken. The patient, in the meantime, upon learning of her infection, has no duty to tell her husband. I am smelling an appeal here.
In the meantime in this technological age, the notifications might not be in the form of the letters I envisioned. Instead, they might be included in the annoying automated telephone calls like the ones I get from my doctors reminding me about an upcoming appointment.
“This is Dr. Smith’s office calling to remind Mrs. Jones that she has an appointment next Tuesday at 9:00 a.m. and, by the way, to also to let Mr. Jones know that Mrs. Jones and the doctor are. . .”
Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.