Troxel v. A.I. Dupont Institute

• Citation: 450 Pa.Super. 71,675 A.2d 314
• Parties: Grace and Daniel TROXEL, Administrators of the Estate of Trevor Robert Troxel, Deceased, Appellants, v. A.I. DUPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D.
• Decision Date: 17 April 1996
• Court: Superior Court of Pennsylvania

Page 314

675 A.2d 314

450 Pa.Super. 71

Grace and Daniel TROXEL, Administrators of the Estate of Trevor Robert Troxel, Deceased, Appellants, v. A.I. DUPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D.

Superior Court of Pennsylvania.

Argued Sept. 13, 1995.

Filed April 17, 1996.

Nancy L. Goldstein, Philadelphia, for appellants.

Jay Lambert, Philadelphia, for Ches-Penn Health Services, appellee.

Joseph H. Foster, Philadelphia, for Browngoehl, appellee.

Before KELLY, FORD ELLIOTT and OLSZEWSKI, JJ.

FORD ELLIOTT, Judge:

In this admittedly tragic case, we are asked to decide, under Pennsylvania law, the nature and extent of a physician's duty to third persons when the physician undertakes the treatment and care of a patient with a contagious disease. Instantly, the trial court determined as a matter of law that a doctor has no duty to warn a patient with a highly contagious but ubiquitous viral infection that the patient should avoid contact with pregnant women whose unborn infants may be at risk of death or debilitating birth defects if they are exposed to the virus. The trial court granted appellees Ches-Penn Health Services and Kevin Browngoehl, M.D.'s motion for summary judgment basing its decision on this court's opinion in Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179 (1994) (Troxel I ), allocatur denied, 538 Pa. 648, 647 A.2d 903 (1994). We reverse.

Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.Civ.P.Rule 1035(b). The trial court must view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the non-moving party, with any doubt resolved against the moving party. The trial court will be overturned only if there has been an error of law or a clear abuse of discretion. First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 197, 653 A.2d 688, 691 (1995) (citations omitted). Our review of the record is, however, plenary. Keselyak v. Reach All, Inc., 443 Pa.Super. 71, 74-75, 660 A.2d 1350, 1352 (1995).

The facts and procedural history, taken from Troxel I, are set forth below:

On October 30, 1987, Mary Siple, a non-party, gave birth to a female child, Ashley [Smith]. Because Ashley was born with microcephaly [footnote omitted] and a pes cavus deformity of the leg, [footnote omitted] she was taken for treatment to Ches-Penn Health Services, Inc., a Pennsylvania medical services center, where she was examined by Dr. Kevin Browngoehl, a Pennsylvania physician. Dr. Browngoehl suspected that Ashley was suffering from cytomegalovirus (CMV) [Footnote] and referred her to [the A.I.] duPont [Institute] for additional tests. At duPont, Ashley was seen by Dr. Borkowski, a Delaware neurologist. The tests conducted at duPont, under Dr. Borkowski's supervision, confirmed a diagnosis of CMV. In the meantime, Ches-Penn discovered that Ashley's mother, Mary Siple, was also suffering from CMV.

Grace Troxel was a long time friend of Mary Siple, and, in November, 1987, she became pregnant. During her pregnancy she frequently visited Mary Siple and often assisted in feeding and bathing Ashley and in changing her diapers. In May, 1988, Mary Siple learned, allegedly for the first time, that CMV was contagious and posed a special danger to pregnant women. By this time, Grace Troxel had entered the third trimester of her pregnancy and was already infected with CMV. On August 19, 1988, she gave birth to a son, Trevor. Unfortunately, Trevor had acquired CMV from his mother in utero and died from the disease on November 17, 1988.

Grace and Daniel Troxel filed wrongful death and survival actions on behalf of their deceased son and also for the infection of Grace Troxel with CMV. They named as defendants duPont and Ches-Penn, which subsequently joined Dr. Browngoehl as an additional defendant. The essence of plaintiffs' claim was that defendants had failed to inform Mary Siple of the contagious nature of CMV and of the risk to pregnant women who might come into contact with her infant. Dr. Browngoehl filed a cross-claim against the remaining defendants pursuant to Pa.R.C.P. 2252(d).

Troxel I, supra at 467, 636 A.2d at 1180. We would include the additional fact, taken from Dr. Browngoehl's May 3, 1988 chart notes, that Mary Siple told Dr. Browngoehl she was looking for work, and would be leaving Ashley with a friend.

The issue before the Troxel I court was whether the trial court properly entered summary judgment in favor of the Delaware defendant, duPont. In order to make that determination, the Troxel I court had to decide whether to apply the substantive law of Delaware or Pennsylvania. Finding that the substantive law of Delaware applied, the Troxel I court then determined that, under Delaware law, no cause of action existed because no duty existed on the part of the medical providers toward third persons, absent a special relationship between the doctor and the patient or the doctor and the third person. Id. at 471-72, 636 A.2d at 1183. In drawing this conclusion, the Troxel I court relied in part upon The Restatement (Second) of Torts, § 315, and Delaware cases in which it was applied. Section 315 states, "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 ..., or (b) a special relation exists between the actor and the other...." Section 319 states that a special relationship exists where one "takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled...." Restatement (Second) of Torts § 319 (1965). The Troxel I court then noted that Delaware courts had found such a special relationship in a case in which a psychiatrist knew of the dangerous propensities of his patient, and therefore had a duty toward third persons in the treatment and discharge of the patient. Troxel I, supra at 471-72, 636 A.2d at 1183, citing Naidu v. Laird, 539 A.2d 1064 (Del.Supr.1988). Nevertheless, the Troxel I court found Naidu inapposite.

The Troxel I court then analyzed whether § 324A of the Restatement conferred a duty upon physicians toward third parties under Delaware law. Section 324A provides:

§ 324A. Liability to Third Person for Negligent Performance of Undertaking

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Troxel I, supra at 473-74, 636 A.2d at 1183-84, quoting Restatement (Second) of Torts, § 324A. Once again, the Troxel I court determined that Delaware courts would not impose upon duPont a duty toward Grace Troxel and her unborn child under § 324A.

The Troxel I court then noted that, in contrast to Delaware, the Pennsylvania Supreme Court had found that a physician owed a duty to third parties who were not his patients under § 324A in DiMarco v. Lynch Homes--Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990) (DiMarco II ). In DiMarco II, a phlebotomist contracted hepatitis-B from a nursing home patient when the needle she was using to withdraw a sample of the patient's blood pricked her skin. She immediately sought medical advice from defendant physicians, who told her that if she remained symptom-free for six weeks, she would not have been infected with the virus. Id. at 559-60, 583 A.2d at 423. She was also told to refrain from sexual relations for the six-week period; ¹ however, she decided to abstain from sex with her boyfriend for eight weeks. At the end of the eight-week period, when she was still symptom-free, she resumed sexual relations with her boyfriend. One month later, she was diagnosed with hepatitis-B, and three months after that, her boyfriend, the plaintiff in DiMarco II, was similarly diagnosed. DiMarco brought an action against the doctors and the nursing home, alleging their negligence in not having warned the technician that having sexual relations within six months of exposure to hepatitis-B could expose her sexual partner to the disease as well. Id.

In sustaining defendants' preliminary objections, the trial court relied upon the physician's lack of control over the sexual conduct of his patients and the public policy against non-marital sex. DiMarco I, supra at 465-66, 559 A.2d at 531, citing trial court opinion at 4.

On appeal, however, we reversed the trial court. While first recognizing the general rule that the duty of a physician arises from the physician/patient relationship, citing Craddock v. Gross, 350 Pa.Super. 575, 504 A.2d 1300 (1986), and Ervin v. American Guardian Life Assurance Company, 376 Pa.Super. 132, 545 A.2d 354 (1988), we went on to find a duty, nonetheless, between the defendant/doctor and DiMarco based on Restatement § 324A(c). Specifically, this court found a duty on the part of the phlebotomist's doctors to DiMarco under § 324A(c), providing he could prove that the physicians gave the phlebotomist erroneous information regarding the transmission of the disease, and that DiMarco justifiably relied upon that advice to his detriment. Id. at 473-74, 559 A.2d at 535.

Justice Montemuro opined as follows:

In the case at bar, we find that the appellant has stated a cause of action, pursuant to ...