Sealed Case, In re, s. 94-7200

• Decision Date: 27 October 1995
• Docket Number: Nos. 94-7200,94-7201,s. 94-7200
• Citation: 67 F.3d 965
• Parties: In re SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 965

67 F.3d 965

314 U.S.App.D.C. 271

In re SEALED CASE.

Nos. 94-7200, 94-7201.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 27, 1995.

Decided Oct. 27, 1995.

Appeals from the United States District Court for the District of Columbia (No. 92cv02283).

David C. Schroeder, Washington, DC, argued the cause and filed the briefs for appellant.

Lee T. Ellis, Jr., argued the cause for appellee, with whom M. Tracy McPherson, Washington, DC, was on the brief.

Before: EDWARDS, Chief Judge, WALD and RANDOLPH, Circuit Judges.

WALD, Circuit Judge:

Appellant, Mrs. B, claims that she contracted HIV, the virus that causes AIDS, from her husband. She is suing Dr. M ("Consultant"), who worked on a part-time basis for Mr. B's physician, Dr. C ("Doctor"). Doctor, the husband's physician, hired Consultant part-time to review laboratory data from tests ordered or performed by Doctor. Consultant, in his performance of these "quality control" data reviews, would direct Doctor's attention to results he believed might be in error, or suggest follow-up protocols that he believed should be performed. Sometimes Consultant would also make suggestions to the patient that Doctor would review and, if he agreed with them, pass on to the patient.

In the exercise of this agreement with Doctor, Consultant reviewed six pages of laboratory test data regarding tests Doctor had ordered to be done for patient Mr. B during an office visit on September 23, 1988. Based on his review, Consultant made several comments on the last page of the reports, which he then returned to Doctor, who counter-signed Consultant's comments. Mrs. B claims that from this review of one day's laboratory tests, Consultant acquired a duty to examine her husband's complete medical file, from which she alleges Consultant should have discovered that Mr. B carried the HIV virus, that he was married to Mrs. B, and that Mrs. B was at risk of contracting the virus from her husband. Accordingly, Mrs. B argues that Consultant had a duty, which he failed to meet, to warn her that her husband had tested HIV-positive and could transmit the virus to her. The district court granted summary judgment for Consultant, finding that any duty he owed to Mrs. B was limited to his contractual duty to review and record her husband's test results correctly.

Because we agree that the narrow scope of Consultant's relationship with Doctor did not give rise to an obligation for Consultant to review the entire file of every patient whose laboratory data he reviewed at Doctor's request, we hold that Consultant did not have--and therefore could not have breached--any duty to notify Mrs. B of her husband's HIV status. We therefore affirm the district court's grant of summary judgment to the defendant.

I. BACKGROUND

We can affirm the district court's grant of summary judgment in favor of Consultant only if we find that "there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Sherwood v. Washington Post, 871 F.2d 1144, 1146 (D.C.Cir.1989) (citing Byers v. Burleson, 713 F.2d 856, 859 (D.C.Cir.1983)). In that light, we must evaluate the facts as alleged by Mrs. B.

Mrs. B claims that her husband visited Doctor, his regular physician, in 1987. During the visit, Doctor tested Mr. B for HIV, and that test came back positive. Doctor explained to Mr. B that he had been exposed to the virus that causes AIDS, but that the positive test result did not necessarily mean that Mr. B had the AIDS virus in his blood. Doctor recommended a second test, which came back negative. The doctor assured Mr. B that the negative result meant that the AIDS virus was not present in the sample of blood he tested, and Mr. B understood this to mean that he did not have the virus and could not transmit it to anyone.

In January, 1988, Consultant began working for Doctor on a part-time basis to see some of Doctor's patients and to perform quality control for the office. During the time in which appellant's cause of action arose, Consultant never saw or met with Mr. B. Consultant's only involvement with Mr. B's medical care arose through his conduct of quality control review of laboratory work that Doctor had ordered done for Mr. B during a September 23 office visit. According to his agreement with Doctor, Consultant's quality control duties involved making sure that the tests Doctor had ordered had been done; that the results did not contain any glaring laboratory or typographical errors; and that any necessary follow-up had been conducted. As a result of his review of Mr. B's September 23 test results, Consultant made some brief suggestions to the patient for Doctor to review. ¹ Consultant signed his name below these comments and delivered them to Doctor, who then approved and countersigned the suggestions. The lab reports Consultant reviewed did not contain any records that, without additional information from Mr. B's file, could have alerted Consultant to Mr. B's HIV status. Mrs. B alleges, and has produced the affidavits of two expert witnesses to support her allegation, that Consultant's review of Mr. B's test results nonetheless gave rise to a duty to review the patient's medical records dating back at least to May, 1987.

Mr. and Mrs. B originally filed separate complaints, which the court consolidated in 1993, against both Doctor and Consultant. In May, 1994, Mrs. B settled her claim against Doctor. A month later, the district court granted summary judgment in favor of Consultant on both claims, but denied Doctor's motion for summary judgment. The court thereafter granted Consultant's Motion to Direct the Entry of Final Judgment in his favor, from which Mrs. B, but not Mr. B, has appealed. Thus, the only parties involved in the appeal are Mrs. B and Consultant.

Mrs. B argues that Consultant's review of her husband's records from the September 23 visit, at the request of the treating physician, established a physician-patient relationship between Consultant and Mr. B. Out of that relationship, she claims, Consultant acquired a specific duty to warn her of the risk of HIV transmission from her husband. Mrs. B also contends that a physician owes a general duty of care to foreseeable victims of his or her negligence. Because Consultant negligently failed to warn Mr. B that he could transmit HIV to others, and Mrs. B was a foreseeable victim of that omission, he can be legally held liable to her for the consequences of his negligence.

Pretermitting the question of what circumstances, if any, impose a duty upon a physician to notify a third party of a patient's HIV status, we reject the appellant's claims. The District of Columbia has not yet addressed the third-party notification issue, and we find, in any case, that any duty owed by the defendant Consultant in the circumstances of this case was limited to a careful review of the laboratory records referred to him by Mr. B's primary physician.

II. DISCUSSION

This diversity action is governed by the substantive tort law of the District of Columbia. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 553 (D.C.Cir.1993) (citing Schleier v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., 876 F.2d 174, 180 (D.C.Cir.1989)). A successful negligence claim by Mrs. B against Consultant would have to establish the following propositions: first, that Consultant owed a duty, under District of Columbia law, to Mrs. B to conform to a certain standard of care; second, that Consultant breached this duty; and finally, that his breach caused the injury to the plaintiff. See Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 623-24 (D.C.1986); see also White v. United States, 780 F.2d 97, 102 (D.C.Cir.1986) (applying D.C. law); Esfandiari v. United States, 810 F.Supp. 1, 6-7 (D.D.C.1992) (addressing both D.C. and Virginia law). The existence of the first element, a legal duty owed by the defendant to the plaintiff, is a question of law, to be determined by the court. See Zhou v. Jennifer Mall Restaurant, 534 A.2d 1268, 1274 (D.C.1987) ("Defining the contours of common law liability, including the duty that may have been breached in a negligence case, is a task traditionally within the purview of the judicial branch." (emphasis added)); accord RESTATEMENT (SECOND) OF TORTS Sec. 328B(b), (c) (1963) (the court determines whether the facts give rise to any legal duty on the part of the defendant, and the standard of conduct required of the defendant by his legal duty); see also Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993); Fox v. Custis, 236 Va. 69, 372 S.E.2d 373, 375 (1988); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500, 514 (1979). The court should determine the existence of a duty "by reference to the body of statutes, rules, principles, and precedents...." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS Sec. 37 at 236 (5th ed. 1984).

Mrs. B relies heavily on her claim that Consultant and Mr. B had established a physician-patient relationship. According to her theory, the specific duty of disclosure she alleges Consultant owed her arose out of this claimed doctor-patient relationship between him and Mr. B. We disagree with Mrs. B, however, that the critical inquiry here concerns the existence of a formal relationship between the patient and his doctor's part-time consultant. Even if Mrs. B were correct that her husband and Consultant established a physician-patient relationship, that relationship would only obligate Consultant to exercise "the degree of care and skill reasonably expected of other medical professionals ... acting under similar circumstances." Scarzella v. Saxon, 436 A.2d 358, 361 (D.C.1981) (emphasis added); accord Morrison v. MacNamara, 407 A.2d 555, 560 (D.C.1979).

To apply this standard, we must look carefully at the precise circumstances under which Consultant...