Pate v. Threlkel, No. 84289

• Court: United States State Supreme Court of Florida
• Writing for the Court: WELLS; GRIMES; SHAW
• Citation: 661 So.2d 278
• Parties: 20 Fla. L. Weekly S356 Heidi PATE and James Pate, her husband, Petitioners, v. James B. THRELKEL, M.D.; James B. Threlkel, M.D., P.A.; Gessler Clinic, P.A.; Shands Teaching Hospital & Clinics, Inc.; and Florida Board of Regents, Respondents.
• Docket Number: No. 84289
• Decision Date: 20 July 1995

Page 278

661 So.2d 278 20 Fla. L. Weekly S356 Heidi PATE and James Pate, her husband, Petitioners,
v.
James B. THRELKEL, M.D.; James B. Threlkel, M.D., P.A.;
Gessler Clinic, P.A.; Shands Teaching Hospital &
Clinics, Inc.; and Florida Board of
Regents, Respondents. No. 84289. Supreme Court of Florida. July 20, 1995.
Rehearing Denied Oct. 10, 1995.

Page 279

Nolan Carter of Law Offices of Nolan Carter, P.A., Orlando, for petitioners.

J. Brent Jones of Hannah, Marsee & Voght, P.A., Orlando; and Francis E. Pierce, III of Gurney & Handley, P.A., Orlando, for respondents.

WELLS, Justice.

We have for review the following question certified to be of great public importance:

DOES A PHYSICIAN OWE A DUTY OF CARE TO THE CHILDREN OF A PATIENT TO WARN THE PATIENT OF THE GENETICALLY TRANSFERABLE NATURE OF THE CONDITION FOR WHICH THE PHYSICIAN IS TREATING THE PATIENT?

Pate v. Threlkel, 640 So.2d 183, 186 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We answer the question in the affirmative provided the children of the patient first establish that pursuant to the prevailing standard of care set forth in section 766.102, Florida Statutes (1989), a reasonably prudent physician would give such warning to his or her patient in light of all relevant circumstances.

In March 1987, Marianne New received treatment for medullary thyroid carcinoma, a genetically transferable disease. In 1990, Heidi Pate, New's adult daughter, learned that she also had medullary thyroid carcinoma. Consequently, Pate and her husband filed a complaint against the physicians who initially treated New for the disease as well as the physicians' respective employers. Pate and her husband alleged that the physicians knew or should have known of the likelihood that New's children would have inherited the condition genetically; that the physicians were under a duty to warn New that her children should be tested for the disease; that had New been warned in 1987, she would have had her children tested at that time; and if Pate had been tested in 1987, she would have taken preventative action, and her condition, more likely than not, would have been curable. Pate claimed that as a direct and proximate cause of the physicians' negligence, she suffers from advanced medullary thyroid carcinoma and its various damaging effects. ¹

The respondent health care providers moved to dismiss the complaint for failure to state a cause of action. Specifically, the respondents alleged that Pate did not demonstrate the existence of a professional relationship between her and respondents and thus failed to establish that respondents owed her a duty of care. The trial court granted the motion and dismissed the Pates' complaint with prejudice, finding that the plaintiffs were not patients of the respondents

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and that they did not fit within any exception to the requirement that there be a physician-patient relationship between the parties as a condition precedent to bringing a medical malpractice action.

The district court affirmed the trial court's dismissal. The court rejected the Pates' argument that it should, based upon past decisions recognizing a doctor's duty to inform others of a patient's contagious disease, ² extend a physician's duty to cover the child of a patient who suffers from an inheritable disease. The court also rejected the Pates' reliance on Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), in which the parents of a four-year-old child brought suit against the child's pediatricians for failing to diagnose the child with cystic fibrosis early enough to prevent the parents from having a second diseased child. The New Jersey court in Schroeder recognized that due to the special nature of the family relationship, a physician's duty may extend beyond a patient to members of the patient's immediate family. Id. at 839.

In rejecting the Pates' claim, the district court focused upon the legal issue of duty. To define the concept of duty the court relied on our decision in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). In McCain, we stated, "Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." Id. at 503. A duty is thus established when the acts of a defendant in a particular case create a foreseeable zone of risk. ³ Having defined when a duty arises, we went on to state that "each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result." Id. Relying on McCain, the district court recognized the existence of a physician's duty. The court, however, declined to extend the boundaries of that duty to include Heidi Pate. Specifically, the court held, "we feel constrained by the circumstances of this case and the law as it exists to hold that appellees' conduct in treating Marianne New did not create a foreseeable zone of risk encompassing Heidi Pate, and that the general rule of privity would apply to affirm the trial court's dismissal of the cause." Pate, 640 So.2d at 185.

We agree with the district court's focus on duty. We conclude that to answer the certified question we must consider two questions related to duty. First, we must determine whether New's physicians had a duty to warn New of the genetically transferable nature of her disease. We find that to make this determination we must apply section 766.102, Florida Statutes (1989), which defines the legal duty owed by a health care provider in a medical malpractice case. That section provides in part:

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