Jarmie v. Troncale

• Decision Date: 25 September 2012
• Docket Number: SC18358
• Court: Connecticut Supreme Court
• Parties: JARMIE v. TRONCALE

JARMIE v. TRONCALE

SC18358

Supreme Court of Connecticut

DATED: September 25, 2012

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DISSENT

EVELEIGH, J., with whom HARPER, J., joins, dissenting. I respectfully dissent. I disagree with the majority's conclusion that the complaint of the plaintiff, John Jarmie, fails to state a cause of action for negligence in this case involving a physician's duty to warn his patient of potential driving risks associated with her underlying medical condition "because Connecticut precedent does not support it, the plaintiff was an unidentifiable victim, public policy considerations counsel against it, and there is no consensus among courts in other jurisdictions, which have considered the issue only rarely." Instead, I would conclude that the trial court improperly granted the motion to strike the plaintiff's complaint filed by the defendants, Frank Troncale, a physician, and his employer, Gastroenterol-ogy Center of Connecticut, P.C., because the plaintiff's complaint stated a cause of action for negligence. Specifically, I would conclude that, under the facts of this case, Troncale owed a duty to his patient, Mary Ann Ambrogio, to warn her of the potential risks associated with her underlying medical condition as they related to routine activities such as driving. Furthermore, I would conclude that Troncale's breach of the duty to Ambrogio can, in turn, constitute a breach of duty to an injured third party—in the present case, the plaintiff, who was struck by Ambrogio's car after she blacked out while driving—that can form the basis of a negligence claim. Accordingly, I dissent.

At the outset, I note the majority's assertion that "[t]he principal issue in this appeal is whether a physician who fails to advise an unaware patient of the potential driving risks associated with her underlying medical condition breaches a duty to the victim of the patient's unsafe driving because of the failure to advise." First, I emphasize that the duty owed to the plaintiff, as alleged, is the same duty as that owed to Ambrogio. The plaintiff does not claim, and I would not conclude, that Troncale had a duty to warn either a specific class, or the public in general, about Ambrogio's medical condition that may cause blackouts. Instead, the plaintiff claims only that Troncale had a duty to warn Ambrogio of the possible effect of her medical condition. Second, the plaintiff does not claim that Troncale either had a duty to control Ambrogio—take her car keys away— or to warn the plaintiff specifically. Third, the plaintiff bases his claim on Troncale's duty of care to Ambrogio, therefore, recognizing the plaintiff's claim is not inconsistent or detrimental to the physician-patient relationship. Fourth, the plaintiff does not challenge Troncale's treatment decisions, only Troncale's already existing duty to inform Ambrogio regarding the consequences of her medical condition. It is on this narrow and limited basis that I dissent.

I begin by noting that I agree with the underlying facts and procedural history recited by the majority. I will provide additional facts where necessary. Further, I also agree with the majority that "[t]he standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).

First, Connecticut precedent supports recognizing a cause of action by the plaintiff against Troncale under the facts of the present case. Specifically, this court has recognized that there are circumstances in which a health care professional does owe a duty to a nonpa-tient. Thus, in Fraser v. United States, 236 Conn. 625, 633-35, 674 A.2d 811 (1996), we noted with approval the principle first established in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 441, 551 P.2d334,131 Cal. Rptr. 14 (1976), that a psychotherapist whose outpatient threatens to commit acts of violence against others owes a duty of care to the potential victims, despite the absence of privity. Moreover, even in cases where this court has held that a physician does not owe a duty to a nonpatient, it has centered its analysis on the fact that the injuries were not foreseeable and that public policy did not support a duty under the facts of those cases. See Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003) (sister of patient fainted while observing medical procedures and filed action against treating emergency medical technician and nurse); Jacoby v. Brinckerhoff, 250 Conn. 86, 95-96, 735 A.2d 347 (1999) (plaintiff claimed psychiatrist's negligence in treating ex-wife caused divorce); Zamstein v. Marvasti, 240 Conn. 549, 551, 692 A.2d 781 (1997) (plaintiff claimed psychiatrist's negligence in evaluating his children caused false charges of sexual abuse to be brought against him); Maloney v. Conroy, 208 Conn. 392, 939, 545 A.2d 1059 (1988) (daughter of patient filed action against physicians and hospital for emotional distress arising from negligent treatment of patient); see also Boone v. William W. Backus Hospital, 272 Conn. 551, 562-70, 864 A.2d 1 (2005) (engaging in analysis to determine whether father's claim against physicians who treated son was medical malpractice claim requiring expert testimony); Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253-57, 811 A.2d 1266 (2002) (conducting analysis to determine whether nonpatient's claim against hospital and physician sounded in medical malpractice, requiring expert testimony). None of thesecases, or any other decision of this court, employ or endorse the per se rule that such claims are barred categorically because of the absence of a provider-patient relationship.

Second, unlike the majority, I would conclude that, under the limited facts of the present case, the injury to the plaintiff was foreseeable and that public policy supports recognizing a duty to a nonpatient in the circumstances present herein. This approach is consistent with the modern general rule requiring the issue of whether a physician owes a duty to a nonpatient to be determined on the specific facts of each individual case. See 1 D. Dobbs & P. Hayden, The Law of Torts (Sup. 2010) § 241D, p. 237 ("[wjhen a physician's patient causes injury to a third person . . . courts have generally recognized that, given appropriate facts, the physician owes a duty to the nonpatient [despite a lack of privity]"). Indeed, "[ljiability [to a nonpatient] has . . . been found when the doctor was aware of a physical condition of which the patient was unaware, but which was likely to result in an accident." 1 D. Louisell & H. Williams, Medical Malpractice (2012) § 8.03 [5], p. 8-62.3.

The complaint in the present case alleges the following: (1) Troncale diagnosed Ambrogio as having a certain medical condition, hepatic encephalopathy; (2) judged by the standards of his professional specialty, gastroenterology, Troncale knew or should have known that Ambrogio's condition rendered her unable to drive a car safely; (3) nevertheless, Troncale failed to advise or to warn Ambrogio not to drive. Taking these facts as true, as we must in considering an appeal from the grant of a motion to strike, I would conclude, as have numerous courts from other jurisdictions, that these facts establish that a prudent physician in Troncale's position would have foreseen harm to a patient because a car accident of some kind was a foreseeable result if his patient continued driving in her impaired condition. See Myers v. Quesenberry, 144 Cal. App. 3d 888, 892, 193 Cal. Rptr. 733 (1983); Cram v. Howell, 680 N.E.2d 1096, 1098 (Ind. 1997); Duvall v. Goldin, 139 Mich. App. 342, 352, 362 N.W.2d 275 (1985) (all concluding, under similar facts, that harm to nonpatient victim was foreseeable to physician). There is certainly no dispute that, if Ambrogio had sustained injuries due to Troncale's failure to warn her not to drive, her damages would have been foreseeable as a matter of law. Because the plaintiff's injuries occurred in the same manner in which Ambrogio's foreseeable injuries would have occurred, it is, therefore, inconsistent to conclude that the plaintiff's injuries were not foreseeable. An out of...