New York high court rules medical negligence liability may extend to nonpatients.

The tragic experience of a father who contracted polio while changing his infant daughter's diaper moved the New York Court of Appeals to rule for the first time that doctors can be liable to nonpatients for malpractice. (Tenuto v. Lederle Laboratories, No. 162 (N.Y. Oct. 23, 1997).)

Dominick and Elizabeth Tenuto's daughter received an oral polio vaccine from Dr. Leroy Schwartz in 1979. The Tenutos claim that Schwartz did not warn them that live polio viruses in an infant's feces or saliva could transmit the disease.

Health officials had been aware since 1961 of "parental contact polio," and drug companies had been warning physicians about the danger since 1977. The risk is particularly strong for people who are in a weakened condition, and Dominick was recovering from elective surgery. Within a month of the exposure he was diagnosed with polio, and he has since been rendered paraplegic.

After the Tenutos brought suit against Schwartz, a New York trial court and an appellate court dismissed their claim, finding that a doctor's liability under the public health law extends only to patients. The Court of Appeals has now reversed the lower courts, stating that "a duty of reasonable care extended to plaintiffs despite the absence of a direct doctor/patient treatment relationship."

Judge Howard Levine wrote that "common morality, logic, and social policy could permit a limited extension of the duty of care of a physician beyond the immediate patient under treatment."

Levine noted that the doctor should have known the parents were relying on his professional expertise to protect their health. "Indeed, if Dr. Schwartz had no responsibility to pass on warnings regarding the dangers associated with the administration of this vaccine, then the duty of the manufacturer to inform doctors of such risks would be meaningless."

In the unanimous decision, Levine stressed the "special relationship" between a pediatrician and parents of an ill child. That relationship, he wrote, "is especially pointed where, as here, the physician is a pediatrician engaged by the parents to provide medical services to their infant, and those services, by necessity, require advising the patient's parents."

Some observers have interpreted the court's careful language as an effort to limit the scope of the new liability created by the decision. (Gary Spencer, Malpractice Liability Offered to Non-Patient, N.Y. L.J., Oct. 24, 1997, at 1.)

Attorney Martin Edelman, who represented the Tenutos, said, "The implications of the decision are, in fact, very broad. What was not said may be more important than what was said."

Edelman points out that the court could have defined the limits of liability far more clearly. He says the court considered, but did not specify, a legal relationship with the patient (such as a spouse or parents) as an outer limit The court also considered, but did not include, a distinction between a doctor's failure to convey information and failure to diagnose infectious diseases like tuberculosis or AIDS.

"The importance of this ruling goes beyond the polio realm," said Edelman. "It's the beginning of understanding that the duty of the doctor extends beyond the four walls of his office."