Davis v. Mangelsdorf

• Decision Date: 20 September 1983
• Docket Number: No. 1,CA-CIV,1
• Citation: 673 P.2d 951,138 Ariz. 207
• Parties: Anne M. DAVIS, Plaintiff-Appellant, v. Carl H. MANGELSDORF, M.D. and Chastine Mangelsdorf, his wife, Defendants-Appellees. 6489.
• Court: Arizona Court of Appeals

Page 951

673 P.2d 951

138 Ariz. 207

Anne M. DAVIS, Plaintiff-Appellant, v. Carl H. MANGELSDORF, M.D. and Chastine Mangelsdorf, his wife, Defendants-Appellees.

No. 1 CA-CIV 6489.

Court of Appeals of Arizona Division 1, Department A.

Sept. 20, 1983.

Review Denied Dec. 6, 1983.

MacLean & Jacques, Ltd. by Cary T. Inabinet, Phoenix, for plaintiff-appellant

Teilborg, Sanders, Haga & Parks, P.C. by Frank A. Parks, Phoenix, for defendants-appellees.

OPINION

KLEINSCHMIDT, Presiding Judge.

This lawsuit was initiated by Anne M. Davis to recover for personal injuries sustained in an automobile accident caused by a driver who lost control of his vehicle while suffering an epileptic seizure. The primary issue on appeal is whether Ms. Davis can maintain a cause of action against the driver's former physician who had advised the driver to discontinue the use of an anti-convulsive drug approximately 17 years prior to the accident.

The complaint was filed in 1981 in Maricopa County Superior Court against Dr. Carl H. Mangelsdorf and his wife. The Mangelsdorfs filed a motion to dismiss which was granted by formal order from which Davis timely appealed. We find no error and affirm the judgment of the trial court.

The following facts which are alleged in the complaint must be presumed true for purposes of an appeal from the order of dismissal. Maldonado v. Southern Pacific Transportation Co., 129 Ariz. 165, 166, 629 P.2d 1001, 1002 (App.1981). In January, 1979, Davis was seriously injured as a result of an accident which occurred in Anchorage, Alaska. The accident happened when William J. Smith suffered a seizure, causing him to go into a convulsion and lose control of the vehicle he was driving resulting in injuries to the appellant Davis.

Smith had previously experienced grand mal seizures between 1958 and 1962 while he was under the care of Dr. Mangelsdorf in Flint, Michigan. Smith was treated with Dilantin, an anti-convulsive drug, to control the seizures. In 1962 Dr. Mangelsdorf reduced the dosage and subsequently advised Smith to discontinue using Dilantin. Dr. Mangelsdorf last treated Smith in 1964.

The complaint alleges that Dr. Mangelsdorf was negligent in advising Smith to cease taking Dilantin, in failing to warn Smith of the dangers of discontinuing use of an anti-convulsive drug, in failing to consult with a neurologist and in negligent treatment of Smith after his last seizure preceding the accident.

We must first determine whether Dr. Mangelsdorf owed a duty to protect Davis from the injury of which she complains. See Parish v. Truman, 124 Ariz. 228, 230, 603 P.2d 120, 122 (App.1979). Absent a question upon which reasonable minds could differ, the question of whether a duty exists is one of law for the court. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 144, 639 P.2d 330, 334 (1982); Griffith v. Valley of the Sun Recovery and Adjustment Bureau, Inc., 126 Ariz. 227, 230, 613 P.2d 1283, 1286 (App.1980).

Arizona follows the rule set forth in the Restatement (Second) of Torts § 315 (1965) to the effect that there is generally no duty to control the conduct of a third person to prevent him from causing harm to another absent a special relationship between the parties. See Parish v. Truman, supra. See also Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 267, 564 P.2d 1227, 1234 (1977). The Restatement § 315 provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

The relationships which give rise to a duty to control a third party's conduct are set forth in Restatement §§ 316-319. Ms. Davis argues that Dr. Mangelsdorf's duty to her was based upon his special relationship with William Smith, i.e., the doctor-patient relationship that existed between 1958 and 1964. It is in most cases unrealistic to speak of a doctor "controlling" a patient. The usual relationship of doctor to patient is one of ability to influence the patient's conduct. While Ms. Davis does not limit her arguments to any particular section of the Restatement, the only relationship between Mangelsdorf and Smith which arguably falls within the Restatement is referred to in § 319 which provides in part:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

The facts alleged in the pleadings and reasonable inferences to be drawn therefrom are that Dr. Mangelsdorf "took charge" of Smith by treating him for his epilepsy and that Dr. Mangelsdorf should have known that Smith's seizures were likely to cause bodily harm to another in the event that Smith suffered one while driving a motor vehicle.

In support of her contention that Dr. Mangelsdorf owed her a duty Ms. Davis has cited authority from various jurisdictions imposing upon physicians duties to third persons for negligent treatment of a patient. The leading case in this area is Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), in which the California Supreme Court held that a psychotherapist owed a duty towards a potential victim of his patient to warn her either directly or indirectly that the patient intended to do her harm. Other jurisdictions have similarly held that psychologists, psychiatrists and therapists have a duty to warn individuals who are potential victims of their patients. Similarly, courts have imposed a duty on doctors and medical or penal institutions who have physical custody of dangerous individuals to protect third parties by taking reasonable measures to control their charges' conduct. See Hasenei v. United States, 541 F.Supp. 999 (D.Md.1982); Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980); Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Bradley Center, Inc. v. Wessner, 161 Ga.App. 576, 287 S.E.2d 716 (1982), and McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979).

Some jurisdictions have limited the scope of the duty to warn to situations in which there is a specifically identifiable potential victim rather than to find such duty exists to the public at large. See Leedy v. Hartnett, supra; Thompson v. County of Alameda, 27 Cal.3d 741, 614 P.2d 728, 167 Cal.Rptr. 70 (1980). With respect to the duty to control patient conduct, some courts have emphasized that absent a legal right or ability to control a patient, the doctor/patient or therapist/patient relationship by itself will not create a duty on the part of the doctor or therapist to protect third parties. See, e.g., Hasenei v. United States, supra; Bradley Center, Inc. v. Wessner, supra. See generally Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, 90 Harv.L.Rev. 358 (1976). The ability to influence patient behavior is likewise an implicit prerequisite to the duty imposed in a long line of cases in which courts have required physicians to protect third parties from patients having a contagious disease. See, e.g., Hofmann v. Blackmon, 241 So.2d 752 (Fla.App.1970); Wojcik v. Aluminum Co. of America, 18 Misc.2d 740, 183 N.Y.S.2d 351 (1959); Kaiser v. Suburban Transportation System, 65 Wash.2d 461, 398 P.2d 14 (1965), modified, 65 Wash.2d 461, 401 P.2d 350 (1965).

In the instant case, any direct authority which Dr. Mangelsdorf may arguably have had to control Smith's behavior ended in 1964 when Smith ceased to be his patient. This is in striking contrast to the otherwise factually similar case of Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973). In Freese the Iowa Supreme Court held that a pedestrian who was injured in an automobile accident involving a driver who suffered a seizure could maintain an action against the driver's physician. The injured pedestrian claimed that the physician had negligently failed to advise his patient not to drive an automobile. The court did not discuss the basis for concluding that the pleadings stated a cause of action. ¹ However, in Freese, the driver was under the care of his physician at the time the accident occurred. Had the accident in question occurred during the time period in which Smith was being treated by Dr. Mangelsdorf for his seizures, Davis' case would be much stronger.

A duty of care is indispensable to liability for negligence and one element of the duty...