Doe v. Cochran , 332 Conn. 325 ( 2019 )

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JANE DOE v. CHARLES COCHRAN
(SC 19879)
Palmer, McDonald, Robinson, D’Auria, Mullins,
Kahn and Vertefeuille, Js.*
Syllabus
The plaintiff sought to recover damages from the defendant physician, claim-
ing that he was negligent in failing to accurately report the positive
results of a laboratory test for genital herpes to his patient, S, the
plaintiff’s boyfriend. The plaintiff and S had been involved in an exclusive
romantic relationship. Before the relationship became sexual, the plain-
tiff and S agreed to seek testing for sexually transmitted diseases (STDs).
Prior to this agreement, the plaintiff had tested negative for STDs. S
then visited the defendant and informed him that he wanted to be
tested for STDs for the protection of his new, exclusive girlfriend. The
defendant arranged for S to undergo a blood test, and the results were
positive for genital herpes. The defendant delegated to a member of his
practice staff the task of informing S of the test results. The staff member
incorrectly told S over the phone that his STD test results were negative.
After the plaintiff’s relationship with S became sexual, the plaintiff
began to experience outbreaks consistent with and was subsequently
diagnosed with genital herpes. S thereafter contacted the defendant to
inquire further, and the defendant informed S that he actually had tested
positive for genital herpes and apologized for the error. The defendant
moved to strike the plaintiff’s complaint, claiming that the plaintiff’s
claim sounded in medical malpractice and, therefore, must fail for lack
of a physician-patient relationship between the plaintiff and the defen-
dant. The defendant claimed alternatively that, even if the plaintiff’s
claim sounded in ordinary negligence, the plaintiff and the defendant
were not involved in any special relationship that would justify extending
a duty of care to her. The trial court granted the defendant’s motion to
strike, concluding that the defendant did not owe a duty to the plaintiff.
On appeal from the judgment in favor of the defendant, held:
1. The defendant could not prevail on his claim, as an alternative ground
for affirming the trial court’s judgment, that, because the plaintiff’s
complaint sounded in medical malpractice, the lack of a physician-
patient relationship rendered her claim legally insufficient and, there-
fore, that the trial court properly struck the plaintiff’s complaint;
although this court assumed, for the sake of argument, that the plaintiff’s
complaint reasonably could be read to allege that the defendant commit-
ted medical malpractice, it concluded that the plaintiff’s allegations
also reasonably could be understood to sound in ordinary negligence
because, even though the alleged error occurred in a medical setting
and arose as a result of a medical diagnosis in the context of an ongoing
physician-patient relationship, that error was not one involving profes-
sional medical judgment or skill, as the reading of the test results and
the communication of those results to S were ministerial tasks that
required no advanced medical training, and proof that the alleged error
constituted negligence would not require expert medical testimony or
the establishment of a professional standard of care.
2. A health care provider who negligently misinforms a patient, either directly
or through a designated staff member, that the patient tested negative
for an STD such as genital herpes owes a duty of care to an identifiable
third party who is engaged in an exclusive romantic relationship with
the patient at the time of the STD testing and who foreseeably contracts
the STD as a result of his or her reliance on the provider’s erroneous
communication to the patient, and, accordingly, the trial court incor-
rectly concluded that, as a matter of law, the defendant owed no duty
of care to the plaintiff with respect to the inaccurate reporting to S of his
test results: although this court previously has demonstrated a general
aversion to extending a physician’s duty of care to nonpatients, it has
allowed, under limited circumstances, for the imposition of liability in
cases, such as the present one, involving an identifiable potential victim
who will be foreseeably harmed by a physician’s negligence, and constru-
ing the plaintiff’s complaint in the light most favorable to sustaining its
sufficiency, this court concluded that the plaintiff was an identifiable
potential victim of the defendant’s alleged negligence, as only one person
could have fit the description of S’s exclusive girlfriend, and S presum-
ably could have identified her by name if he had been asked by the
defendant to do so; moreover, a number of other jurisdictions have
recognized that a duty of a medical professional to correctly advise a
patient who suffers from a communicable disease, including STDs,
extends not only to the patient but also to third parties who may fore-
seeably contract the disease from the patient, and § 311 of the Restate-
ment (Second) of Torts, which provides that one who negligently gives
false information may be held liable to a third party who predictably
is injured by the recipient’s reasonable reliance on that information,
appeared to support the imposition of liability in this case; furthermore,
public policy considerations supported the imposition of a third-party
duty of care under the circumstances of the present case, as imposing
a duty in this case, in which broader public health concerns are involved,
would not necessarily intrude on the sanctity of the physician-patient
relationship, when the duty at issue simply requires a physician to
accurately relay test results to the patient himself, if the defendant could
not be held liable, then the plaintiff in all likelihood would be without
remedy or compensation for her injuries and errors such as the defen-
dant’s miscommunication would go unadmonished, the defendant,
rather than the plaintiff or S, was most effectively and economically
situated to avoid the harm that befell the plaintiff, and such errors are
not so prevalent or ineluctable that imposing third-party liability, solely
with respect to identifiable victims, would meaningfully impact medical
malpractice insurance rates or overall health care costs.
(Three justices dissenting in one opinion)
Argued November 16, 2017—officially released July 16, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
Povodator, J., granted the defendant’s motion to strike;
thereafter, the court granted the defendant’s motion for
judgment and rendered judgment thereon, from which
the plaintiff appealed. Reversed; further proceedings.
Thomas B. Noonan, for the appellant (plaintiff).
James S. Newfield, with whom, on the brief, was
Diana M. Carlino, for the appellee (defendant).
Gregory J. Pepe filed a brief for the American Medical
Association et al. as amici curiae.
Jennifer L. Cox and Jennifer A. Osowiecki filed a
brief for the Connecticut Hospital Association as ami-
cus curiae.
Emily B. Rock, Cynthia C. Bott and Julie V. Pinette
filed a brief for the Connecticut Trial Lawyers Associa-
tion as amicus curiae.
Opinion
PALMER, J. The principal issue in this appeal is
whether a physician who mistakenly informs a patient
that he does not have a sexually transmitted disease
(STD) may be held liable in ordinary negligence to the
patient’s exclusive sexual partner for her resulting injur-
ies when the physician knows that the patient sought
testing and treatment for the express benefit of that
partner. Under the circumstances alleged, we conclude
that the defendant, Charles Cochran, a physician, owed
a duty of care to the plaintiff, identified by the pseud-
onym Jane Doe, even though she was not his patient.
Accordingly, we conclude that the trial court improp-
erly granted the defendant’s motion to strike the plain-
tiff’s one count complaint and reverse the judgment of
the trial court.
The following facts, as set forth in the plaintiff’s com-
plaint and construed in the manner most favorable to
sustaining its legal sufficiency; see, e.g., Lestorti v.
DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010); and proce-
dural history are relevant to our disposition of this
appeal. In early 2013, the plaintiff began dating her
boyfriend, identified in this action by the pseudonym
John Smith. At all relevant times, the plaintiff and Smith
were involved in an exclusive romantic relationship.
At some point, the couple agreed that, before their
relationship became sexual, they would individually
seek testing for STDs. As of July, 2013, the plaintiff had
tested negative for and did not have any STDs.
At that time, pursuant to his agreement with the plain-
tiff, Smith visited his physician, the defendant, who is
a licensed medical doctor practicing in Norwalk. During
Smith’s visit, the defendant asked Smith why he wanted
to be tested again for STDs, as the defendant had tested
him just five months earlier. Smith explained that he
wanted to be tested again for the protection and benefit
of his new, exclusive girlfriend, the plaintiff. The defen-
dant then took a sample of Smith’s blood, arranged for
it to be tested for STDs, and subsequently reviewed the
laboratory (lab) test results.
The lab report that the defendant reviewed included
a guide for reading the test’s results. The guide indicated
that an HSV 2 IgG (herpes simplex virus type 2 specific
antibody) result of less than 0.9 is negative for the
herpes simplex virus type 2 (herpes), a result between
0.9 and 1.1 is equivocal, and a result greater than 1.1
means that the sample tested positive for herpes.
Smith’s HSV 2 IgG test result was 4.43, significantly
above the threshold for a positive herpes diagnosis.
The defendant delegated to a member of his staff the
task of informing Smith of the results of his test. Even
though the lab report clearly demonstrated a positive
herpes diagnosis, the staff member incorrectly told
Smith over the phone that his STD test results had come
back negative.
The plaintiff’s relationship with Smith subsequently
became sexual. Thereafter, the plaintiff began to experi-
ence herpes outbreaks and was diagnosed with herpes.
Upon learning of this, Smith contacted the defendant
to inquire further about his test results. The defendant
then informed Smith that he actually had tested positive
for herpes and apologized for the error.
The plaintiff brought a one count action against the
defendant, alleging that the defendant had been negli-
gent in various respects. The defendant moved to strike
the complaint on the basis that the plaintiff’s claim
sounded in medical malpractice and, therefore, must
fail for lack of any physician-patient relationship
between the plaintiff and the defendant. The defendant
argued in the alternative that, even if the court con-
strued the plaintiff’s claim as sounding in ordinary negli-
gence, the plaintiff and the defendant were not involved
in any special relationship that would justify extending
a duty of care to her.
The trial court granted the defendant’s motion to
strike. The court did not expressly resolve the issue of
whether the plaintiff’s claim sounds in ordinary negli-
gence or medical malpractice, at once describing the
plaintiff as ‘‘seeking to extend medical malpractice lia-
bility of a physician to the sexual partner of a patient’’
and referring to the defendant’s ‘‘claimed negligence
. . . in reporting the test results.’’ The analysis under-
taken by the trial court, however, implies that it viewed
the claim as sounding in ordinary negligence. Specifi-
cally, the court concluded that the claim was governed
by our decision in Jarmie v. Troncale, 306 Conn. 578,
50 A.3d 802 (2012), and applied the framework that we
set out in that case for determining whether a nonpa-
tient may assert an ordinary negligence claim against
a health care provider. See id., 591–99. Ultimately, the
trial court concluded the defendant did not owe a duty
of care to the plaintiff and, for that reason, granted the
defendant’s motion to strike. This appeal followed.1
I
As an initial matter, we must resolve a dispute
between the parties as to the gravamen of the plaintiff’s
complaint. As an alternative ground for affirmance, the
defendant contends on appeal, as he did before the trial
court, that the plaintiff’s one count complaint sounds
in medical malpractice. In support of this conclusion,
the defendant points to, among other things, the facts
that (1) the plaintiff alleged that ‘‘[the defendant] had
an obligation to perform the STD tests and [to] report
the results accurately to . . . Smith according to
accepted medical practice and standards,’’ (2) the plain-
tiff further alleged that the defendant’s ‘‘breach of
accepted medical practice and standards’’ by failing to
properly treat, test, monitor, and advise Smith, was the
cause of her injuries, and (3) the plaintiff’s counsel
attached to the complaint a certificate, pursuant to Gen-
eral Statutes § 52-190a (a), averring that there were
grounds for a good faith belief that the defendant had
committed ‘‘medical negligence’’ in the ‘‘care or treat-
ment’’ of Smith. Because a medical malpractice claim
that fails to allege a physician-patient relationship
between a plaintiff and a defendant is legally insuffi-
cient; Jarmie v. Troncale, supra, 306 Conn. 588–89; and
because it is undisputed that the plaintiff never was a
patient of the defendant, the defendant contends that
the trial court properly struck the complaint.
The plaintiff responds that, although she attached a
certificate of good faith pursuant to § 52-190a (a) out
of an abundance of caution, her complaint alleges ordi-
nary, common-law negligence rather than medical mal-
practice. She notes that the single count complaint is
titled simply ‘‘negligence,’’ and it alleges that the plain-
tiff’s ‘‘injuries were the result of the negligence and
carelessness of the [defendant] . . . in [that he failed]
to properly advise . . . Smith of his STD test results
. . . .’’ At no point, moreover, does the complaint use
the term ‘‘medical malpractice.’’
A
We begin our analysis by reiterating that, although
the better practice may be to include a separate count
of the complaint for each distinct theory of liability,
there is no such requirement. Practice Book § 10-26
provides that, ‘‘[w]here separate and distinct causes
of action, as distinguished from separate and distinct
claims for relief founded on the same cause of action
or transaction, are joined, the statement of the second
shall be prefaced by the words Second Count, and so
on for the others . . . .’’ (Emphasis omitted.) In con-
struing an earlier version of this rule of practice, this
court explained that it has ‘‘uniformly approved the use
of a single count to set forth the basis of a plaintiff’s
claims for relief [when] they grow out of a single occur-
rence or transaction or closely related occurrences or
transactions, and it does not matter that the claims for
relief do not have the same legal basis. It is only when
the causes of action, that is, the groups of facts [on]
which the plaintiff bases his claims for relief, are sepa-
rate and distinct that separate counts are necessary or
indeed ordinarily desirable.’’ (Footnote omitted.) Veits
v. Hartford, 134 Conn. 428, 438–39, 58 A.2d 389 (1948).
That remains the rule in this state, and it has been
applied with respect to a single count complaint alleging
different theories of negligence. See Wheeler v. Beach-
croft, LLC, 320 Conn. 146, 160, 129 A.3d 677 (2016)
(‘‘[e]ven though a single group of facts may give rise
to rights for several different kinds of relief, it is still
a single cause of action’’ [internal quotation marks omit-
ted]); Beaudoin v. Town Oil Co., 207 Conn. 575, 588,
542 A.2d 1124 (1988) (restating rule as articulated in
Veits); Baldwin v. Jablecki, 52 Conn. App. 379, 382, 726
A.2d 1164 (1999) (statutory and common-law negli-
gence may be pleaded in single count). Indeed, in Jar-
mie, on which both parties rely, we treated the single
count complaint as alleging both medical malpractice
and common-law negligence when the pleadings were
substantially similar to those at issue here. See Jarmie
v. Troncale, supra, 306 Conn. 583–86; cf. Byrne v. Avery
Center for Obstetrics & Gynecology, P.C., 314 Conn.
433, 463, 102 A.3d 32 (2014) (reference to violation of
statutory duty did not transform count of complaint
alleging common-law negligence into statutory claim).2
Accordingly, we may assume, for the sake of argu-
ment, that the defendant is correct that the complaint
reasonably can be read to allege that he committed
professional malpractice by failing to follow accepted
medical standards in his advising, treatment, and ongo-
ing testing and monitoring of Smith. The question that
we must resolve is simply whether the complaint also
alleges that the defendant committed ordinary com-
mon-law negligence by permitting or instructing his
office staff to give Smith the wrong test results.3
B
The following well established principles guide our
analysis. First, ‘‘[b]ecause a motion to strike challenges
the legal sufficiency of a pleading and, consequently,
requires no factual findings by the trial court, our review
of the court’s ruling . . . is plenary. . . . We take the
facts to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the complaint would support
a cause of action, the motion to strike must be denied.
. . . Moreover, we note that [w]hat is necessarily
implied [in an allegation] need not be expressly alleged.
. . . It is fundamental that in determining the suffi-
ciency of a complaint challenged by a defendant’s
motion to strike, all well-pleaded facts and those facts
necessarily implied from the allegations are taken as
admitted.’’ (Internal quotation marks omitted.) Geysen
v. Securitas Security Services USA, Inc., 322 Conn. 385,
398, 142 A.3d 227 (2016).
‘‘In Connecticut, we long have eschewed the notion
that pleadings should be read in a hypertechnical man-
ner. Rather, [t]he modern trend, which is followed in
Connecticut, is to construe pleadings broadly and realis-
tically, rather than narrowly and technically. . . .
[T]he complaint must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory [on] which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension.’’ (Citation omitted; internal quotation
marks omitted.) ATC Partnership v. Windham, 268
Conn. 463, 466 n.4, 845 A.2d 389 (2004).
Second, our courts have long recognized that a health
care provider may commit ordinary negligence, as
opposed to medical malpractice, in the course of treat-
ing a patient or providing medical services. See, e.g.,
Multari v. Yale-New Haven Hospital, Inc., 145 Conn.
App. 253, 260, 75 A.3d 733 (2013) (‘‘The plaintiff has not
alleged medical malpractice . . . but simply ordinary
negligence against an entity that happens to be a medi-
cal provider. The fact that the defendant is a medical
provider, does not, by itself, preclude a finding that
the plaintiff’s action sounds in ordinary negligence.’’);
Badrigian v. Elmcrest Psychiatric Institute, Inc., 6
Conn. App. 383, 385–86, 505 A.2d 741 (1986) (claim that
defendant failed to supervise psychiatric patients in
crossing highway sounded in ordinary negligence); see
also Jarmie v. Troncale, supra, 306 Conn. 593 and n.5
(leaving open possibility of third-party negligence
claims against health care providers).
To determine whether a claim against a health care
provider sounds in ordinary negligence rather than (or
in addition to) medical malpractice, we must ‘‘review
closely the circumstances under which the alleged neg-
ligence occurred. [P]rofessional negligence or malprac-
tice . . . [is] defined as the failure of one rendering
professional services to exercise that degree of skill
and learning commonly applied under all the circum-
stances in the community by the average prudent repu-
table member of the profession with the result of injury,
loss, or damage to the recipient of those services. . . .
[M]alpractice presupposes some improper conduct in
the treatment or operative skill [or] . . . the failure to
exercise requisite medical skill . . . .’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248,
254, 811 A.2d 1266 (2002). ‘‘[T]o prevail in a medical
malpractice action, the plaintiff must prove (1) the req-
uisite standard of care for treatment, (2) a deviation
from that standard of care, and (3) a causal connection
between the deviation and the claimed injury. . . .
Generally, expert testimony is required to establish both
the standard of care to which the defendant is held and
the breach of that standard.’’ (Internal quotation marks
omitted.) Id., 254–55. Accordingly, a claim sounds in
medical malpractice when ‘‘(1) the defendants are sued
in their capacities as medical professionals, (2) the
alleged negligence is of a specialized medical nature
that arises out of the medical professional-patient rela-
tionship, and (3) the alleged negligence is substantially
related to medical diagnosis or treatment and involved
the exercise of medical judgment.’’ (Internal quotation
marks omitted.) Id., 254. In connection with an ordinary
negligence claim, by contrast, the defendant’s conduct
is judged against the standard of ‘‘what a reasonable
person would have done under the circumstances
. . . .’’ Considine v. Waterbury, 279 Conn. 830, 859,
905 A.2d 70 (2006).
C
With these principles in mind, we consider the plain-
tiff’s complaint. The relevant allegations of the com-
plaint indicate that the defendant reviewed Smith’s test
results, notified a staff member of those results, and
delegated to the staff member the task of informing
Smith of the results. The complaint further alleges that
the lab report contained a guide that made clear that
Smith had tested positive for herpes. In addition, the
complaint alleges that, although the test results were
positive, the staff member informed Smith that his
results were negative. Finally, the plaintiff alleges that
the defendant’s negligence in failing to accurately
advise Smith of his positive test results caused Smith
to infect the plaintiff with herpes.
These allegations are consistent with two distinct
theories of negligence. First, the defendant could have
misread Smith’s lab report and incorrectly concluded
that the results were negative. Second, it is possible
that the defendant interpreted the report correctly but
that either the defendant misinformed his staff member
that the results were negative or the staff member misin-
formed Smith. In other words, the alleged error could
have occurred either in the initial interpretation of the
report or in the inaccurate communication of the
results, via the staff member, to Smith. See 2 Restate-
ment (Second), Torts § 311 (2), p. 106 (1965) (negli-
gence may consist of failure to exercise reasonable care
in ascertaining accuracy of information or in manner
in which information is communicated).
In either case, we agree with the plaintiff that her
allegations reasonably can be understood to sound in
ordinary negligence. It is true that the alleged error
transpired in a medical setting and that it arose as a
result of a medical diagnosis in the context of an ongo-
ing physician-patient relationship. There are at least
two reasons, however, why we nevertheless conclude
that this aspect of the complaint need not be read to
sound in medical malpractice.
First, the alleged error is not one involving profes-
sional medical judgment or skill. If the defendant mis-
read Smith’s lab result, then he failed to perform what
was, in essence, a simple, ministerial task. The index to
the report states that a result greater than 1.1 indicates
a positive test, and the report states that Smith’s result
was 4.43. No advanced medical training was necessary
to determine that Smith had tested positive for herpes;
elementary reading and arithmetic skills should have
been sufficient. Indeed, laypeople routinely perform
comparable tasks, such as reading and interpreting
meat thermometers, oil dipsticks, pool and spa test
strips, and insulin tests.
Of course, the same conclusion holds to an even
greater extent if the genesis of the error was that the
defendant simply told his staff member the wrong test
result or the staff member relayed the wrong result to
Smith. That sort of careless miscommunication could
occur in any setting and has nothing to do with the
exercise of professional medical judgment or skill.
Indeed, the very fact that the defendant delegated the
task to a staff member, who presumably was not a
medical doctor, points to the nontechnical nature of
the communication.
Second, regardless of whether the alleged error arose
from a misreading or a miscommunication, proving that
it constituted negligence would not require expert medi-
cal testimony or the establishment of a professional
standard of care. A jury will not need expert testimony
to determine whether the defendant’s staff was negli-
gent in leading Smith to believe that he was free of
STDs when the defendant knew, or should have known,
that Smith had tested positive for herpes, a contagious
STD, and intended to engage in sexual activity. Such a
determination is well within the ken of a lay person.4
Accordingly, we conclude that, as in Jarmie, the
plaintiff in this case pleaded a cause of action sounding
in ordinary negligence. We therefore turn our attention
to the plaintiff’s claim that the defendant, in informing
Smith of his test results, owed a common-law duty of
care not only to Smith but also to the plaintiff, a non-
patient.
II
Having concluded that the plaintiff’s claim sounds in
ordinary negligence, we now must determine whether,
under the circumstances presented in this case, a physi-
cian owes a duty of care to an identifiable third party5
who is not a patient. We conclude that a physician does
owe such a duty.
A
We begin by setting forth the elements of a cause of
action in ordinary negligence. ‘‘The essential elements
of a cause of action in negligence are well established:
duty; breach of that duty; causation; and actual injury.
. . . Contained within the first element, duty, there are
two distinct considerations. . . . First, it is necessary
to determine the existence of a duty, and then, if one
is found, it is necessary to evaluate the scope of that
duty. . . . The existence of a duty is a question of law
and only if such a duty is found to exist does the trier
of fact then determine whether the [alleged tortfeasor]
violated that duty in the particular situation at hand.’’
(Internal quotation marks omitted.) Jarmie v. Troncale,
supra, 306 Conn. 589.
‘‘Although it has been said that no universal test for
[duty] ever has been formulated . . . our threshold
inquiry has always been whether the specific harm
alleged by the plaintiff was foreseeable to the defen-
dant. The ultimate test of the existence of the duty to
use care is found in the foreseeability that harm may
result if it is not exercised. . . . By that is not meant
that one charged with negligence must be found actually
to have foreseen the probability of harm or that the
particular injury [that] resulted was foreseeable, but
the test is, would the ordinary [person] in the [alleged
tortfeasor’s] position, knowing what he knew or should
have known, anticipate that harm of the general nature
of that suffered was likely to result . . . .
‘‘A simple conclusion that the harm to the plaintiff
was foreseeable, however, cannot by itself mandate a
determination that a legal duty exists. Many harms are
quite literally foreseeable, yet for pragmatic reasons,
no recovery is allowed. . . . A further inquiry must be
made, for we recognize that duty is not sacrosanct in
itself . . . but is only an expression of the sum total
of those considerations of policy [that] lead the law to
say that the plaintiff is entitled to protection. . . . The
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results.’’ (Internal quotation marks omitted.)
Id., 590.
The default assumption of the common law, then, is
that one owes a duty to exercise due care in one’s
affirmative conduct with respect to all people, insofar
as one’s negligent actions may foreseeably harm them.
3 F. Harper et al., Harper, James and Gray on Torts (3d
Ed. 2007) § 18.6, p. 862. Under specific circumstances,
however, the law, for reasons of public policy, places
additional restrictions on the class of people to whom
a duty of care is owed. See, e.g., id., § 18.3, p. 781. In
most instances, for example, a physician’s liability for
the negligent care and treatment of a patient does not
extend to nonpatient third parties who have been fore-
seeably injured by that negligence. Id., § 18.5A, p. 852;
see also Jarmie v. Troncale, supra, 306 Conn. 592–93.
But see Squeo v. Norwalk Hospital Assn., 316 Conn.
558, 568, 113 A.3d 932 (2015) (recognizing limited cause
of action for bystander emotional distress resulting
from medical malpractice); Jarmie v. Troncale, supra,
593 n.5 (declining to endorse per se rule barring third-
party claims against health care providers). The present
case requires us to further clarify the scope of this
exception to the general duty rule.
B
With these principles in mind, we now turn our atten-
tion to the central question posed by the present appeal,
namely, whether a health care provider who negligently
misinforms a patient that he does not have an STD
owes a duty of care to an identifiable third party who
foreseeably6 contracts the STD as a result of the provid-
er’s negligence. The defendant contends that various
public policy considerations counsel against recogni-
tion of such a duty. Most notably, because a patient
such as Smith could have been or become intimate with
an unlimited number of romantic partners, there is no
meaningful way to identify or restrict the number of
individuals whom he might infect and, therefore, to
limit the class of persons who could have standing to
bring an action of this sort.
The defendant further contends that a number of
public policy considerations and common-law tradi-
tions that are unique to the health care environment
or, specifically, to the physician-patient relationship,
counsel against recognizing a physician’s duty to a non-
patient third party under the circumstances alleged in
the present case. He argues that (1) the law generally
does not impose on physicians a duty of care to nonpa-
tient third parties, (2) the considerations underlying the
adoption of Connecticut’s medical malpractice statutes,
General Statutes §§ 52-190a through 52-190c, disfavor
the imposition of additional liability on physicians, (3)
imposing on physicians duties to third parties risks
interfering with and undermining the physician-patient
relationship, and (4) considerations of confidentiality
create both legal and logistical hurdles to the recogni-
tion of such duties. Finally, the defendant contends that
the plaintiff could have taken various measures both to
protect herself from contracting herpes—presumably
sexual abstention or the use of prophylactics—and to
establish proper standing to bring an action of this
sort—such as accompanying Smith when he sought
treatment from the defendant.
The trial court, in granting the defendant’s motion to
strike, was swayed by a number of these arguments.
The court also discussed several additional concerns:
whether physicians might become obligated to contact
and warn or to educate patients’ sexual partners; the
fact that physicians have no control over whether and
how patients share their STD test results with potential
sexual partners; and whether the recognition of a duty
to nonpatients should be predicated on the existence
of a formal, mutual STD testing agreement between
the patient and his or her prospective sexual partner.
Although the defendant, certain of the amici,7 and the
trial court raise many valid concerns, for the reasons
that follow, we are persuaded that they do not counsel
against the recognition of a duty under the specific cir-
cumstances presented in this case.
1
Setting aside for the moment the question of what
third-party duties apply within the distinct confines of
the physician-patient relationship, we observe at the
outset that many of the concerns that the defendant
raises and that the trial court found persuasive have
been addressed and resolved in other professional con-
texts. Although the plaintiff has not labeled it as such,
her claim is, in essence, one for negligent misrepresen-
tation. That tort specifically encompasses situations
such as this, in which a tortfeasor negligently supplies
misinformation knowing that the recipient of that infor-
mation intends to supply it in turn for the benefit and
guidance of a third party.
‘‘This court has long recognized liability for negligent
misrepresentation. We have held that even an innocent
misrepresentation of fact may be actionable if the
declarant has the means of knowing, ought to know,
or has the duty of knowing the truth. . . . [When the
information supplied is to be used in the furtherance
of a business transaction and the alleged harm is solely
pecuniary, the] governing principles are set forth in
. . . § 552 of [Volume 3 of] the Restatement Second of
Torts [1977]: One who, in the course of his business,
profession or employment . . . supplies false informa-
tion for the guidance of others in their business transac-
tions, is subject to liability for pecuniary loss caused
to them by their justifiable reliance [on] the information,
if he fails to exercise reasonable care or competence
in obtaining or communicating the information.’’ (Cita-
tions omitted; internal quotation marks omitted.) D’Uli-
sse-Cupo v. Board of Directors of Notre Dame High
School, 202 Conn. 206, 217–18, 520 A.2d 217 (1987).
Recognizing the potentially limitless scope of the finan-
cial harms that may flow from the dissemination of
false information, the Restatement (Second) restricts
liability for negligent misrepresentation of this sort to
the loss suffered ‘‘(a) by the person or one of a limited
group of persons for whose benefit and guidance [the
defendant] intends to supply the information or knows
that the recipient intends to supply it,’’ and ‘‘(b) through
reliance upon it in a transaction that he intends the
information to influence or knows that the recipient
so intends or in a substantially similar transaction.’’ 3
Restatement (Second), Torts § 552 (2) (a) and (b), p.
127 (1977); see also id., comment (a), pp. 127–28. In
other words, the Restatement (Second) addresses the
problem of potentially limitless third-party liability,
first, by conferring standing on only those third parties
to whom the defendant knew that the recipient intended
to supply the information at issue and, second, by
restricting liability to losses arising from transactions
for the purpose of which the information was supplied.
Defined and cabined in this manner, liability for negli-
gent misinformation has been upheld in various con-
texts in which a professional is hired to supply infor-
mation to a client, knowing that the client is obtaining
the information at least in part for the benefit and guid-
ance of some third party or parties. Although we have
not definitively resolved whether an accountant or an
auditor may be liable for negligent misrepresentation
to a nonclient third party; see Stuart v. Freiberg, 316
Conn. 809, 816–17, 831–32 n.17, 116 A.3d 1195 (2015)
(deeming it unnecessary to determine whether liability
could be imposed and leaving question open); a number
of other courts have held that such professionals can
be held liable under the approach set forth in § 552 of
the Restatement (Second) of Torts. See, e.g., Ellis v.
Grant Thornton LLP, 530 F.3d 280, 288–89 (4th Cir.)
(applying West Virginia law), cert. denied, 555 U.S. 1049,
129 S. Ct. 652, 172 L. Ed. 2d 614 (2008); North American
Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38–40 (1st
Cir. 2001) (applying Massachusetts law); see also Tri-
continental Industries, Ltd. v. PricewaterhouseCoop-
ers, LLP, 475 F.3d 824, 836 (7th Cir. 2007) (applying
similar Illinois rule).
A growing number of courts also have dispensed with
the traditional privity requirement and have imposed
liability on attorneys with respect to transactions in
which the attorney’s opinion is solicited for the benefit
of an identifiable third party. See generally B. Walker,
Note, ‘‘Attorney’s Liability to Third Parties for Mal-
practice: The Growing Acceptance of Liability in the
Absence of Privity,’’ 21 Washburn L.J. 48 (1981) (noting
modern trend toward imposing liability and discussing
cases). Although courts following the modern approach
to professional negligent misinformation claims have
not been oblivious to the concerns raised by the defen-
dant and certain of the amici—the potential for limitless
third-party liability, interference with the professional-
client relationship, and the undue burdening of the pro-
fessional practice—they have concluded that limiting
liability to circumstances in which professional services
are sought for the specific benefit of identifiable third
parties adequately addresses any concerns centering
around both foreseeability and professionalism. See id.,
65–66; see also North American Specialty Ins. Co. v.
Lapalme, supra, 258 F.3d 40; Pelham v. Griesheimer,
92 Ill. 2d 13, 20–21, 440 N.E.2d 96 (1982).8
Moreover, as we discuss more fully in part II B 4 of
this opinion, the Restatement (Second) of Torts recog-
nized that there is even less need to cabin potential
third-party liability for negligent misrepresentation in
cases such as this, in which the misinformation was
not supplied for the recipient’s financial benefit and the
third-party plaintiff suffered physical as well as pecuni-
ary injuries. Under those circumstances, the Restate-
ment (Second) advises that ‘‘[o]ne who negligently gives
false information to another is subject to liability for
physical harm caused by action taken by the other in
reasonable reliance upon such information, where such
harm results . . . (b) to such third persons as the actor
should expect to be put in peril by the action taken.’’
2 Restatement (Second), supra, § 311 (1) (b), p. 106.
Similar principles underlie § 324A, which provides that
‘‘[o]ne who undertakes . . . to render services to
another which he should recognize as necessary for the
protection of a third person . . . 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 . . . (c) the
harm is suffered because of reliance of the other or the
third person upon the undertaking.’’ Id., § 324A (a) and
(c), p. 142.
2
Turning to the specific question of what duties, if
any, a medical professional owes to a nonpatient third
party, we begin by reviewing Connecticut precedent.
The parties agree that Jarmie v. Troncale, supra, 306
Conn. 578, is the seminal Connecticut case on the sub-
ject, but they disagree as to how the present case should
be resolved under Jarmie.9 We conclude that, although
Jarmie helps to guide our analysis, whether a physician
owes a duty of care to a patient’s intimate partner to
accurately report that patient’s STD test results remains
a question of first impression in Connecticut.
In Jarmie, the defendant physician diagnosed and
treated a patient for various liver and kidney ailments,
including hepatic encephalopathy but failed to warn
her of the latent driving impairment associated with
her condition. Id., 581. After leaving the physician’s
office, the patient lost consciousness while operating
her motor vehicle and struck the plaintiff. Id. The trial
court granted the defendant’s motion to strike the plain-
tiff’s complaint in his subsequent negligence action
against the physician, concluding that physicians owe
no common-law duty to protect third parties from injur-
ies caused by patients. Id., 582.
On appeal, we began by emphasizing that there is
no common-law or statutory rule against nonpatients
bringing ordinary negligence claims against physicians.
Id., 586. We recognized, however, that our cases display
a general aversion to extending a physician’s duty of
care to nonpatients. See id., 592. That aversion is rooted
in the principles of tort reform underlying § 52-190a, as
well as the common-law rule that, in the absence of a
special relationship, there is no duty to protect a third
person from the conduct of another. Id. We further
explained that ‘‘[t]here is no well established common-
law rule that a physician owes a duty to warn or advise
a patient for the benefit of another person.’’ Id. Never-
theless, we emphasized that we have not ‘‘employed or
endorsed a per se rule that [third-party] claims [against
health care providers] are categorically barred because
of the absence of a physician-patient relationship but,
rather . . . this court has exercised restraint when pre-
sented with opportunities to extend the duty of health
care providers to persons who are not their patients.’’
(Internal quotation marks omitted.) Id., 593–94 n.5. In
addition, we distinguished cases from other jurisdic-
tions that had imposed third-party liability on a physi-
cian by remarking that those cases, unlike Jarmie,
involved a physician who had ‘‘failed to warn the patient
that he or she either had a communicable disease or
had been exposed to one.’’ Id., 616. Accordingly, we
left open the possibility that, under appropriate circum-
stances, and in particular with respect to the diagnosis
of communicable diseases, a physician’s common-law
duty of care may extend to nonpatients.10
In the parts of this opinion that follow, we will discuss
and apply the various factors and considerations that
we deemed to be relevant to the duty analysis in Jarmie.
For now, we emphasize two points. First, a principal
reason that we affirmed the judgment of the trial court
in Jarmie and declined to recognize that the defendant
physician owed a duty to the plaintiff motorist was
because the plaintiff was not an identifiable victim at
the time that medical services were provided. Id., 590–
91, 603. Rather, ‘‘potential victims of [the physician’s]
alleged negligence included any random pedestrian,
driver, vehicular passenger or other person who hap-
pened to come in close proximity to a motor vehicle
operated by [the patient] following her diagnosis.’’
Id., 597.
We explained that, in previous cases, we had ‘‘limited
foreseeable victims of a health care provider’s negli-
gence to identifiable persons . . . .’’ Id., 594; see id.,
596 (‘‘the foreseeability test as applied by this court in
the context of health care providers has . . . required
an identifiable victim because we have deemed the
effect of a physician’s conduct on third parties as too
attenuated’’); see also Jacoby v. Brinckerhoff, 250 Conn.
86, 96–97, 735 A.2d 347 (1999) (psychiatrist owed no
duty to patient’s ex-spouse, who was not identifiable
victim); Fraser v. United States, 236 Conn. 625, 632,
674 A.2d 811 (1996) (psychotherapist owed no duty to
victim because ‘‘our decisions defining negligence do
not impose a duty to those who are not identifiable
victims [and] . . . in related areas of our common law,
we have concluded that there is no duty except to
identifiable persons’’).
In the present case, by contrast, the plaintiff has
alleged that ‘‘Smith told [the defendant] that he was
seeking STD testing not only for his benefit, but for the
protection and benefit of his new, exclusive girlfriend,
[the] plaintiff.’’ Construing this pleading in the light
most favorable to sustaining the sufficiency of the com-
plaint, we must conclude that the plaintiff was an identi-
fiable, if not identified, potential victim of the defen-
dant’s alleged negligence at the time that treatment was
rendered.11 That is to say, only one woman could have
fit the description of Smith’s exclusive girlfriend, and
Smith presumably could have identified her by name
if he had been asked to do so. See Jarmie v. Troncale,
supra, 306 Conn. 597–98 (identifiable victim is one
whom it was possible to identify before negligent act
occurred).
This identifiable victim requirement strikes an equita-
ble balance between the interests at stake. Although a
health care provider’s liability may expand beyond his
or her patients, its increased scope would encompass
only those third-party victims of whose existence and
potential exposure to harm the health care provider
had been made aware—or could have become aware—
prior to the negligent act.12
Second, since we decided Jarmie, we have held that,
under limited circumstances, a health care provider is
liable to third parties for professional negligence, albeit
in the context of a bystander emotional distress claim.
In Squeo v. Norwalk Hospital Assn., supra, 316 Conn.
558, we concluded that ‘‘a bystander to medical mal-
practice may bring a claim for the resulting emotional
distress . . . when the injuries result from gross negli-
gence such that it would be readily apparent to a lay
observer.’’ Id., 560. In so holding, we relied on ‘‘our
recent statement in Jarmie . . . eschewing any per
se rule that [third-party tort] claims are categorically
barred because of the absence of a physician-patient
relationship . . . .’’13 (Citation omitted; internal quota-
tion marks omitted.) Id., 574.
Accordingly, we find Connecticut precedent to be
unsettled with respect to the particular question pre-
sented here. Although we never have been confronted
with the question of a physician’s duty to a third party
with respect to the reporting of STD test results, and
although we consistently have expressed a general aver-
sion to extending the duty of health care providers to
third parties, we have allowed, under limited circum-
stances, for the imposition of liability to an identifiable
potential victim who will be foreseeably harmed by a
physician’s negligence.
3
In Jarmie, after we concluded that Connecticut prec-
edent did not bar the imposition of the duty at issue,
we proceeded to look to sister state authority and also
to consider whether various policy factors favored the
imposition of such a duty. Jarmie v. Troncale, supra,
306 Conn. 598–624. In this part of the opinion, we review
how other jurisdictions have resolved similar cases. In
part II B 4, we analyze the various policies at issue.
A number of other jurisdictions have held that, under
certain circumstances, the duty of a medical profes-
sional to correctly diagnose and advise a patient who
suffers from a communicable disease extends not only
to the patient but also to third parties who may fore-
seeably contract that disease from the patient. See 61
Am. Jur. 2d 382, Physicians, Surgeons and Other Healers
§ 226 (2012) (‘‘[a] physician is liable for his or her negli-
gence in permitting persons to be exposed to infectious
or communicable diseases to the injury of the persons
so exposed’’); see also L. Gostin & J. Hodge, ‘‘Piercing
the Veil of Secrecy in HIV/AIDS and Other Sexually
Transmitted Diseases: Theories of Privacy and Disclo-
sure in Partner Notification,’’ 5 Duke J. Gender L. &
Policy 9, 37 (1998); T. Bateman, annot., ‘‘Liability of
Doctor or Other Health Practitioner to Third Party Con-
tracting Contagious Disease from Doctor’s Patient, 3
A.L.R. 5th 370, 377–79, § 2 [a] (1992); G. Sarno, ‘‘Physi-
cian’s Failure To Protect Third Party from Harm by
Nonpsychiatric Patient,’’ 43 Am. Jur. Proof of Facts 2d
657, 670–72, § 3 (1985). Many such courts, for example,
have long held that physicians and other health care
providers charged with diagnosing, treating, and con-
trolling the spread of contagious diseases owe a duty of
care to members of the immediate family of an infected
patient. See, e.g., Bolieu v. Sisters of Providence in
Washington, 953 P.2d 1233, 1239 (Alaska 1998); Hof-
mann v. Blackmon, 241 So. 2d 752, 753 (Fla. App. 1970),
cert. denied, 245 So. 2d 257 (Fla. 1971); Shepard v.
Redford Community Hospital, 151 Mich. App. 242, 245–
46, 390 N.W.2d 239 (1986), appeal denied, 431 Mich.
872, 430 N.W.2d 458 (1988); Skillings v. Allen, 143 Minn.
323, 326, 173 N.W. 663 (1919); Wojcik v. Aluminum Co.
of America, 18 Misc. 2d 740, 746–47, 183 N.Y.S.2d 351
(1959).14 In some of these cases, the court held that the
provider had an affirmative duty to notify or educate
the third party, whereas, in other cases, the court simply
held that a third party had standing to enforce the pro-
vider’s duty to properly diagnose, treat, and educate
the infected patient.
Although appellate cases addressing a physician’s
duties to a patient’s premarital sexual partners are few
and far between, the plaintiff and certain of the amici
have identified several cases that permit an action to
be brought either by a victim who was identifiable at
the time of treatment or by any member of the class
of persons who foreseeably could contract an STD from
the patient as a result of the physician’s negligence.
See, e.g., Reisner v. Regents of the University of Califor-
nia, 31 Cal. App. 4th 1195, 1200–1201, 37 Cal. Rptr. 2d
518 (1995) (physician had duty to advise patient that
he tested positive for human immunodeficiency virus
(HIV) for benefit of unknown and unidentifiable but
foreseeable sexual partners), review denied, California
Supreme Court, Docket No. S045274 (May 18, 1995);
C.W. v. Cooper Health System, 388 N.J. Super. 42, 60–62,
906 A.2d 440 (App. Div. 2006) (health care provider
owed duty to inform patient of positive HIV test results
and that duty extended to persons ‘‘within the class of
reasonably foreseeable individuals whose health [was]
likely to be threatened by the patient’s ignorance of his
own health status,’’ including patient’s future sexual
partner); DiMarco v. Lynch Homes-Chester County,
Inc., 525 Pa. 558, 563–64, 583 A.2d 422 (1990) (when
boyfriend of blood technician who acquired hepatitis
B from accidental exposure was member of class of
persons whose health was likely to be threatened by
exposure to such communicable disease, and her physi-
cians gave erroneous advice to her regarding potential
spread of that disease, boyfriend had cause of action
against physicians); Estate of Amos v. Vanderbilt Uni-
versity, 62 S.W.3d 133, 138 (Tenn. 2001) (future husband
and daughter of patient who was not informed that she
was at risk of contracting HIV deemed members of
identifiable class for purposes of hospital’s third-
party liability).
The defendant attempts to distinguish these cases on
the ground that the plaintiff, unlike the sexual partners
at issue in the cited cases, could have accompanied
Smith when he sought STD testing and thus established
a quasipatient relationship with the defendant sufficient
to support a legal duty of care. We are not persuaded
by this contention. First, the defendant provides no
authority to support his theory that either the law or
the medical profession confers a special status on a
nonspouse sexual partner who accompanies a patient
to his or her appointment with a physician and that
that status is sufficient to support a legal duty of care.
Second, it may well be that the defendant’s suggested
approach would interfere more directly with the physi-
cian-patient relationship and raise more substantial
confidentiality concerns than would the imposition of
the third-party duty of care for which the plaintiff
advocates.
The defendant also notes that many of these cases
involve potentially deadly diseases such as HIV that are
more serious than herpes. We agree with the Alaska
Supreme Court, however, that ‘‘the duty issue cannot
turn on possible distinctions among diseases based on
their severity and ubiquity. . . . Rather, the severity
and ubiquity of the disease bear on what the [provider]
must do to discharge the duty.’’ Bolieu v. Sisters of
Providence in Washington, supra, 953 P.2d 1240.
A Florida case, Hawkins v. Pizarro, 713 So. 2d 1036
(Fla. App.) review denied, 728 So. 2d 202 (Fla. 1998),
provides an instructive contrast. In that case, a patient
tested positive for hepatitis C, but her physician’s office
improperly advised her that she had tested negative. Id.,
1037. Several months later, the patient met the plaintiff,
whom she eventually married. Id. The plaintiff con-
tracted hepatitis C from the patient and filed an action
against the physician for medical negligence. Id. In
upholding the trial court’s granting of summary judg-
ment in favor of the defendant, the District Court of
Appeal of Florida recognized that hepatitis C is a highly
contagious sexually transmitted disease and that a phy-
sician’s duty of care in treating such diseases is intended
in part for the benefit of third parties. Id., 1037–38.
The court held that the physician owed no duty to the
plaintiff, however, because he was neither identified
nor known to the physician at the time of the incorrect
diagnosis. Id., 1038. By contrast, our research has not
revealed any cases in which a court held that there
was no third-party liability under circumstances such
as those in the present case, in which STD testing was
obtained expressly for the benefit of an identifiable,
exclusive romantic partner. But cf. D’Amico v. Delli-
quadri, 114 Ohio App. 3d 579, 583, 683 N.E.2d 814 (1996)
(plaintiff conceded that, under Ohio law, defendant phy-
sician owed her no direct duty to properly warn and
advise his patient, plaintiff’s boyfriend, as to communi-
cability of genital warts).15
Beyond sister state authority, we further note that
the Restatement (Second) of Torts appears to support
the imposition of liability in a case such as this. As we
previously discussed, § 311 of the Restatement (Sec-
ond) provides that one who negligently gives false infor-
mation may be held liable to a third party who pre-
dictably is injured by the recipient’s reasonable reliance
on that information. Notably, comment (b) to that sec-
tion holds up the physician-patient relationship as the
primary illustration of the rule: ‘‘The rule stated in this
[s]ection finds particular application where it is part of
the actor’s business or profession to give information
upon which the safety of the recipient or a third person
depends. Thus it is as much a part of the professional
duty of a physician to give correct information as to
the character of the disease from which his patient is
suffering, where such knowledge is necessary to the
safety of the patient or others, as it is to make a correct
diagnosis or to prescribe the appropriate medicine.’’
(Emphasis added.) 2 Restatement (Second), supra,
§ 311, comment (b), p. 106. Accordingly, we conclude
that sister state and secondary authorities, although
limited, generally support the imposition of a third-party
duty under the circumstances alleged in the present
case. As we discuss in part II B 5 of this opinion, sister
state courts generally have not been swayed by the
various practical concerns that the defendant and cer-
tain of the amici have raised and that the trial court
found to be compelling.
4
Next, because the question presented is one of first
impression in Connecticut, we consider various public
policy factors that both this court and other authorities
have deemed to be relevant to whether and under what
circumstances a physician owes a duty of care to a
nonpatient third party. On balance, we conclude that
those factors support the imposition of a third-party
duty of care under the circumstances of the present
case.
In Jarmie, we identified the following factors, among
others, as being relevant to the question of what duty
of care a physician owes to nonpatient third parties:
the purposes of the tort compensation system, including
efficiency, harm avoidance, and the appropriate distri-
bution of loss; Jarmie v. Troncale, supra, 306 Conn.
599–602; the normal expectations of the participants
in the activity under review and the public policy of
encouraging participation in the activity, including the
sanctity of the physician-patient relationship; id., 603–
14; and the purposes that underlie Connecticut’s medi-
cal malpractice statute, § 52-190a, including the avoid-
ance of increased litigation and higher health care costs.
Id., 592–93, 603, 614–15. When addressing third-party
liability in the context of infectious diseases in particu-
lar, courts also have taken into account such consid-
erations as ‘‘the foreseeability of third-party injury as
shown by the patient’s [infectious disease] carrier sta-
tus, the degree of communicability of the patient’s infec-
tious disease, and the physician’s actual or constructive
knowledge of the ease of transmission of the patient’s
infectious disease; a public health statute [the] legisla-
tive intent [of which] is partly to protect third parties,
such as a statute requiring physicians to report diag-
nosed instances of communicable or infectious dis-
eases; breach of the physician’s duty to exercise due
care to protect third parties from foreseeable harm
as shown by failure to report diagnosed instances of
communicable or infectious diseases to public health
authorities, failure to warn the patient with the infec-
tious disease not to have contact with third parties,
failure to warn the family of the patient with the infec-
tious disease about the ease of, and precautions against,
its transmission, failure to quarantine the patient with
the infectious disease, failure to vaccinate the patient’s
family [members] against the infectious disease, con-
veyance of an affirmative indication that contact with
the infected patient is not risky, and failure to take
other reasonable measures to prevent exposure to the
patient with the communicable disease; additional indi-
cia of negligence, including failure to use standard avail-
able tests for diagnosing a patient’s infectious disease,
failure to interpret diagnostic test results correctly, and
failure to diagnose the patient’s infectious disease; and
harm to a third-party plaintiff as shown by the third
party’s illness from exposure to the physician’s infec-
tious patient.’’ T. Bateman, supra, 3 A.L.R. 5th 379, § 2
[b].
a
For purposes of the present appeal, two of these
factors, or sets of factors, are especially pertinent to
our analysis. First, although we continue to recognize
the sanctity of the physician-patient relationship and
the need to exercise ‘‘restraint when presented with
opportunities to extend the duty of health care provid-
ers to persons who are not their patients’’; Jarmie v.
Troncale, supra, 306 Conn. 592; we also recognize that
such concerns are at their nadir, and a physician’s
broader public health obligations are at their zenith,
with respect to the diagnosis and treatment of infec-
tious diseases.
Throughout history, both medical organizations and
government entities have recognized not only the criti-
cal role that physicians play in combatting the spread
of contagious diseases such as STDs, but also the con-
comitant fact that, in diagnosing and treating such dis-
eases, a physician’s duties and loyalties necessarily
must be divided between the patient and other people
whom the patient may infect. See generally L. Gostin &
J. Hodge, supra, 5 Duke J. Gender L. & Policy 9. For
example, ‘‘one of the earliest recorded public health
strategies for STD prevention was to pierce the veil of
secrecy surrounding these hidden diseases by notifying
sexual partners . . . of infected patients . . . .’’ Id.,
11. ‘‘Often known collectively as the ‘duty to warn,’
these [judicially imposed, common-law] obligations sub-
sequently have been codified by many state legisla-
tures.’’ Id., 12. For example, partner notification mea-
sures were broadly implemented during the 1930s in
an effort to control and eradicate the syphilis epidemic.
Id., 21. Many states continue to operate provider based
partner referral programs under which health care pro-
viders are responsible for contacting, on a confidential
basis, the sexual partners of patients diagnosed with
various STDs. See id., 27–32.
Indeed, even the American Medical Association
(AMA), one of the amici supporting the defendant’s
position, which argues against the imposition of a third-
party duty under these circumstances, has recognized
that, ‘‘[a]lthough physicians’ primary ethical obligation
is to their individual patients’’; American Medical Asso-
ciation, Code of Medical Ethics (2017) opinion 8.4, p.
128; they also have a responsibility ‘‘to protect and
promote the health of the public.’’ Id., opinion 8.1, p.
125. ‘‘[P]hysicians must balance dual responsibilities to
promote the welfare and confidentiality of the individ-
ual patient and to protect public safety.’’ Id., opinion 8.2,
p. 126. The AMA has further observed that a physician’s
‘‘long-recognized’’ professional responsibilities to non-
patients are especially pronounced in the context of
infectious disease, for which professional standards of
care demand that a physician not only treat his or her
own patients competently, but also go so far as to ‘‘[p]ar-
ticipate in implementing scientifically and ethically
sound quarantine and isolation measures in keeping
with the duty to provide care in epidemics.’’ Id., opinion
8.4, p. 128.
As we noted, the principle that a physician’s duty to
protect the broader public health and to help to deter
the spread of contagious diseases at times transcends
the physician’s duty to his or her individual patient has
long been codified in federal and state law. See, e.g.,
L. Gostin & J. Hodge, supra, 5 Duke J. Gender L. &
Policy 58. Connecticut is no exception in this respect.
Our legislature has, for example, enacted laws that
require physicians to test pregnant patients for syphilis
and HIV; General Statutes § 19a-90; require health care
providers to report certain communicable diseases to
local and state public health officials; General Statutes
§ 19a-215; and permit physicians to warn, or to disclose
confidential patient information for the purpose of
warning, a known partner of a patient who has been
diagnosed with an HIV infection or related disease. Gen-
eral Statutes § 19a-584 (b).
Perhaps most notably, since 2006, both the United
States Centers for Disease Control and Prevention
(CDC) and the AMA have approved the use of so-called
expedited partner therapy programs to combat the
spread of STDs.16 Expedited partner therapy ‘‘is the
delivery of medications or prescriptions by persons
infected with an STD to their sex partners without clini-
cal assessment of the partners’’; in accordance with
this protocol, ‘‘[c]linicians . . . provide patients with
sufficient medications directly or via prescription for
the patients and their partners.’’17 The AMA has author-
ized the use of expedited partner therapy even though
that approach to treating STDs ‘‘potentially abrogates
the standard informed consent process, compromises
continuity of care for patients’ partners, encroaches
[on] the privacy of patients and their partners, increases
the possibility of harm by a medical or allergic reaction,
leaves other diseases or complications undiagnosed,
and may violate state practice laws.’’ American Medical
Association, supra, opinion 8.9, p. 132. In other words,
the medical profession has formed the judgment that
the need to stem the spread of STDs is so great, and
the traditional physician-patient model so inadequate
therefor, that an exception to the prevailing standard
of care should be drawn so that physicians can provide
treatment to third parties who are not their patients. Our
legislature has embraced this novel approach, allowing
practitioners to dispense oral antibiotic drugs to the
sexual partners of patients who have been diagnosed
with chlamydia or gonorrhea, two kinds of STDs, with-
out first physically examining the partners. See General
Statutes § 20-14e (e).
We recognize that none of these laws directly applies
to herpes. This presumably reflects in part the fact that
that disease is not curable at present, and, thus, the
sexual partners of patients infected with herpes would
not be candidates for programs such as expedited part-
ner therapy. At the same time, the fact that herpes is
incurable highlights the extent to which a physician’s
duties in a case such as this run to third parties as well
as to the patient, as it will be the patient’s potential
sexual partners who are the most direct beneficiaries
of the diagnosis.18
Perhaps more than in any other field of medicine,
then, the duty of care that a physician owes to his or
her patient in the diagnosis and treatment of infectious
and sexually transmitted diseases also, necessarily,
entails some duty to third parties who are likely to
contract the disease from the patient. As the Supreme
Court of Pennsylvania explained, ‘‘[c]ommunicable dis-
eases are so named because they are readily spread
from person to person. Physicians are the first line of
defense against the spread of communicable diseases,
because physicians know what measures must be taken
to prevent the infection of others. The patient must be
advised to take certain sanitary measures, or to remain
quarantined for a period of time, or to practice sexual
abstinence or what is commonly referred to as safe
sex.’’ (Internal quotation marks omitted.) DiMarco v.
Lynch Homes-Chester County, Inc., supra, 525 Pa. 562.
The court continued: ‘‘Such precautions are taken not
to protect the health of the patient, whose well-being
has already been compromised, [but] rather such pre-
cautions are taken to safeguard the health of others.’’
(Emphasis omitted.) Id.; cf. Davis v. Rodman, 147 Ark.
385, 391–92, 227 S.W. 612 (1921) (‘‘[o]n account of his
scientific knowledge and his peculiar relation, an
attending physician is, in a certain sense, in custody of
a patient afflicted with [an] infectious or contagious
disease’’); V. Schwartz et al., Prosser, Wade and
Schwartz’s Torts: Cases and Materials (11th Ed. 2005)
p. 432 (custody of persons with contagious diseases
may give rise to singular duty to control conduct of
other person).
At the same time, we perceive little risk that imposing
a third-party duty under these circumstances would
interfere with the physician-patient relationship, breach
patient confidentiality, or require the practice of costly
defensive medicine. See, e.g., Reisner v. Regents of the
University of California, supra, 31 Cal. App. 4th 1203.
Although the plaintiff contends that the defendant owed
her a duty of care as an identifiable potential victim
who foreseeably would rely on the accuracy of his diag-
nosis, her argument is that that duty would have been
fully satisfied if the defendant simply had provided the
accurate test results to Smith, his patient. In other
words, the defendant was under no obligation to con-
tact the plaintiff, to otherwise ensure that she was made
aware of Smith’s test results, or to do anything other
than fulfill his undisputed professional obligation to
accurately convey his patient’s test results to the patient
himself.19 The concerns of the dissent that our decision
in this case will somehow result in the disclosure of
confidential medical information are, therefore, wholly
unfounded.
In conclusion, we think that it is beyond cavil that
physicians such as the defendant owe some duty of
care to third parties when diagnosing and treating a
patient who suffers from an STD. We do not believe
that imposing the duty for which the plaintiff advocates
would intrude on the sanctity of the physician-patient
relationship. Indeed, the duty at issue here—simply to
accurately relay the patient’s test results to the patient
—is far more limited and less intrusive than the public
health reporting and partner notification requirements
that have been imposed on physicians in the context
of diagnosing and treating infectious diseases.
b
The second set of factors that governs our analysis
relates to the purposes of the tort compensation system.
‘‘[T]he fundamental policy purposes of the tort compen-
sation system [are] compensation of innocent parties,
shifting the loss to responsible parties or distributing it
among appropriate entities, and deterrence of wrongful
conduct . . . . It is sometimes said that compensation
for losses is the primary function of tort law . . . [but
it] is perhaps more accurate to describe the primary
function as one of determining when compensation [is]
required. . . . An equally compelling function of the
tort system is the prophylactic factor of preventing
future harm . . . . The courts are concerned not only
with compensation of the victim, but with admonition
of the wrongdoer. . . . [Of course] [i]mposing liability
for consequential damages often creates significant
risks of affecting conduct in ways that are undesirable
as a matter of policy. Before imposing such liability, it
is incumbent [on] us to consider those risks.’’ (Citations
omitted; internal quotation marks omitted.) Jarmie v.
Troncale, supra, 306 Conn. 599–600. In the present case,
these factors also weigh strongly in favor of imposing
a duty on health care providers to identifiable and fore-
seeable third-party victims such as the plaintiff.
First, we observe that, if the defendant is not held
liable to the plaintiff under these circumstances, then,
in all likelihood, she will be without remedy or compen-
sation for her injuries. It is doubtful, for example, that
the plaintiff could recover in negligence from Smith,
who acted responsibly in seeking regular STD testing
and did not have sexual contact with her until he was
possessed of a reasonable, good faith belief that he was
free of STDs.
The trial court, while recognizing ‘‘the absence of any
other source of compensation for the [plaintiff’s] harm,’’
apparently concluded that this factor was mitigated by
(1) the fact that ‘‘the cost of medical treatment likely
would be covered by health insurance,’’ and (2) the
plaintiff’s ability to engage in ‘‘self-protective measures
. . . .’’ The dissent also is of the view that the plaintiff
is not without recourse because she ‘‘may well be cov-
ered by public or private health insurance policies
. . . .’’
There is nothing in the record to support the pure
speculation that the plaintiff had, or will continue to
have, adequate health insurance.20 Nor do we think
it is appropriate to expect ordinary health insurance
policies, or taxpayers, to bear the costs of a physician’s
negligence. Medical malpractice policies exist to spread
such costs.
In any event, the availability of insurance will be of
little consolation to the plaintiff, insofar as genital her-
pes is presently an incurable disease. E.g., E. Moore,
Encyclopedia of Sexually Transmitted Diseases (2005)
p. 135; Mosby’s Medical Dictionary (8th Ed. 2009) p.
872. We must assume that, for the remainder of her life,
the plaintiff will suffer periodic outbreaks of painful
blisters or ulcers associated with the virus. See, e.g., E.
Moore, supra, pp. 132–33. Her desirability as a potential
romantic partner may be diminished. And, if she should
become pregnant, she will have to contend with the
risk that she may transmit the virus to her newborn
child. See, e.g., id., p. 135. Some of these injuries will
not be covered—or may not be adequately covered—by
medical insurance, and we ought not pretend otherwise.
Only the defendant can compensate the plaintiff for
these losses.
With respect to ‘‘self-protective measures,’’ we pre-
sume that the trial court was referring to the fact that,
notwithstanding Smith’s apparently negative STD test
results, the plaintiff could have further reduced the risk
that she would contract an STD either by using prophy-
lactics or abstaining from intercourse with Smith alto-
gether. Even if we were to assume, for the sake of argu-
ment, that it would be reasonable and right to expect
couples, such as the plaintiff and Smith, to abstain from
sexual intimacy, or to consistently practice safe sex
while dating, that would only push back the problem.
At some point, their relationship could have progressed
to a point at which they would have married and con-
summated their union. At that point, a wedding band
would not have been proof against the defendant’s negli-
gence. See Hawkins v. Pizarro, supra, 713 So. 2d 1037
(STD was misdiagnosed prior to courtship, and sexual
partner was diagnosed after marriage).
Second, the flip side of the coin is that, if the plaintiff
cannot hold the defendant responsible for his alleged
negligence, then errors of this sort will go unadmon-
ished. Patients such as Smith are unlikely to have
incurred any legally cognizable damages as a result of
an incorrect test report and, therefore, may be unable
to recover from a defendant physician. We recognize
that not every wrong is compensable in tort and that
losses, even unjust losses, sometimes must be allowed
to lie where fate has cast them. See Jarmie v. Troncale,
supra, 306 Conn. 599. Under these circumstances, how-
ever, imposing third-party liability would play an
important role in spurring physicians such as the defen-
dant to take greater care in reporting STD lab results.
As the California Court of Appeal recognized in Reisner
v. Regents of the University of California, supra, 31 Cal.
App. 4th 1195, the law should ‘‘encourage the highest
standard of care concerning communicable and infec-
tious diseases . . . .’’ Id., 1201; see also id., 1204 (‘‘we
believe that a doctor who knows he is dealing with the
[twentieth] [c]entury version of Typhoid Mary ought to
have a very strong incentive to tell his patient what she
ought to do and not do and how she ought to comport
herself in order to prevent the spread of her disease’’
[footnote omitted]). Holding the defendant liable to the
plaintiff would create such an incentive and deter the
careless misreporting of STD test results.
The trial court, while recognizing that imposing third-
party liability under these circumstances could play
an important deterrent function and help control the
insidious spread of STDs, expressed concern over what
it saw as potentially unforeseen consequences. The
court speculated, for instance, that physicians them-
selves might feel compelled to discuss lab results with
their patients, which could be more costly and less
efficient than relying on nurses or office staff to relay
results. We do not find this concern compelling.
A patient who seeks medical attention to be tested
for a disease, any disease, has a reasonable expectation
that the test results will be reported accurately, by what-
ever means. See, e.g., L. Casalino et al., ‘‘Frequency
of Failure To Inform Patients of Clinically Significant
Outpatient Test Results,’’ 169 Archives Internal Med.
1123, 1123 (2009) (‘‘[f]ailures to inform patients of
abnormal test results . . . are common and legally
indefensible factors in malpractice claims’’). The risks
and costs associated with misinforming a patient that
he does not have a particular disease can be dramatic.
Those include the direct costs to the patient and the
health care system, as when, for example, treatment of
a serious illness such as cancer is irremediably delayed,
or, as in the present case, through the inadvertent infec-
tion of third parties by a patient who falsely believes
that he is free of STDs. Holding health care providers
responsible for errors of the sort alleged will help to
maintain public trust in the reliability of the STD
reporting system and, therefore, encourage continued
participation in this important public health regimen.21
Of course, it ultimately will be for the jury to deter-
mine whether a reasonable health care provider would
have reported Smith’s test results differently, whether
through direct physician-to-patient communications or
through the use of additional fail-safes and quality assur-
ance measures. But we certainly are not prepared to
say, as a matter of law, that, whatever added costs
might be entailed by a quick telephone call or a letter
from one’s physician, or a policy requiring office staff
to double check that they are reporting test results
accurately, they are too onerous relative to the human,
financial, and public health costs associated with a false
negative report.22 Cf. Reisner v. Regents of the Univer-
sity of California, supra, 31 Cal. App. 4th 1200 (it is
not unreasonable to expect physicians to give additional
warning or warnings).
Along these same lines, we note that it would not be
unreasonable for a jury to conclude that the defendant,
and not the plaintiff or Smith, was most effectively and
economically situated to avoid the harm that befell the
plaintiff. In this era of technologized medicine, the con-
veyance of lab results is a regular and central compo-
nent of a physician’s professional duties. The physician
has exclusive access to the original lab results, until
such time as they are shared with or conveyed to the
patient. As between the defendant, on the one hand,
who can avoid errors of this sort simply by double
checking the results before or after speaking with the
patient; see L. Casalino et al., supra, 169 Archives Inter-
nal Med. 1123 (discussing ‘‘relatively simple’’ best prac-
tices); and Smith and the plaintiff, on the other, who
could ensure that the plaintiff remained free of STDs
only by permanently abstaining from intimate contact,23
a jury reasonably could conclude that the defendant
was the party who was in the best position to avoid
the harm at the lowest cost and, therefore, should bear
the costs of the loss. See, e.g., Rodi Yachts, Inc. v.
National Marine, Inc., 984 F.2d 880, 883–84, 888 (7th
Cir. 1993).
At the same time, physicians such as the defendant
can most readily bear and spread through malpractice
insurance the costs associated with errors of the sort
alleged. We are not convinced that such errors are both
so prevalent and so ineluctable that imposing third-
party liability, solely with respect to identifiable victims,
will meaningfully impact insurance rates or overall
health care costs.24 For these reasons, we conclude that
the relevant policy considerations weigh heavily in
favor of allowing liability under these circumstances.
5
Finally, we address two concerns that the defendant
and certain of the amici have raised and that the trial
court found compelling. First is the slippery slope issue.
The trial court observed, and we agree, that, ‘‘[i]n a
sense, [the] plaintiff’s complaint identifies a best case
scenario . . . .’’ That is to say, the plaintiff and Smith
were involved in an exclusive romantic relationship at
the time Smith sought STD testing, Smith informed the
defendant that he was seeking testing for the benefit and
protection of the plaintiff, and the plaintiff subsequently
agreed to engage in sexual relations with Smith in reli-
ance on the test results as reported to Smith. This means
that the defendant’s potential liability for negligently
misreporting Smith’s test results extended to at most
one nonpatient third party, a party of whose existence
the defendant was aware at the time of treatment, who
could foreseeably contract a contagious STD if an erro-
neous negative test result were reported, and to whom
he owed no independent duty beyond the duty already
owed to Smith to accurately report his test results.
Nevertheless, the trial court expressed concerns that
imposing a duty under these limited circumstances
could open the floodgates. For example, the court ques-
tioned whether, if Smith had been dating multiple
women at the time, or later began to date other women,
with whom Smith had not discussed STDs, the defen-
dant would owe a duty to a large and ill-defined class
of potential plaintiffs. The trial court also questioned
whether, under different circumstances, a physician
such as the defendant might feel compelled to question
a patient regarding his sexual partners, or to contact
those partners to discuss the patient’s STD status, or
at least to ensure that the patient accurately relayed
the test results to all of his sexual partners. Finally,
the court questioned whether it makes sense to make
liability hinge on the sort of mutual STD testing arrange-
ment to which the plaintiff and Smith agreed.
Beginning with the last point, we emphasize that the
defendant’s liability does not hinge on the fact that
Smith and the plaintiff entered into a mutual testing
agreement. The alleged fact that Smith sought and
obtained STD testing at the time could become relevant
at trial only insofar as it would support the plaintiff’s
theory of causation, that is, that she was free of STDs
until she became intimate with Smith during or after
July, 2013.
Beyond that, we emphasize that the duty that we
recognize today is quite limited. It extends only to iden-
tifiable third parties who are engaged in an exclusive
romantic relationship with a patient at the time of test-
ing and, therefore, may foreseeably be exposed to any
STD that a physician fails to diagnose or properly
report. And the physician fully satisfies that third-party
duty simply by treating the patient according to the
prevailing standard of care and accurately informing
the patient of the relevant test results. See, e.g., Reisner
v. Regents of the University of California, supra, 31
Cal. App. 4th 1203; Pate v. Threlkel, 661 So. 2d 278,
281–82 (Fla. 1995); Estate of Amos v. Vanderbilt Univer-
sity, supra, 62 S.W.3d 138. Whether there are other,
broader circumstances under which a physician may
be held to owe a duty of care to a nonpatient third
party who foreseeably contracts an infectious disease
as a result of the physician’s negligence is a question
that we need not resolve today.
Nor, as we have discussed, are we overly concerned
that our recognition of a duty under the specific circum-
stances of this case will create a flood of litigation,
increase insurance costs, or discourage physicians from
offering STD testing. See, e.g., Bolieu v. Sisters of Provi-
dence in Washington, supra, 953 P.2d 1239. The amici
supporting the defendant’s position have given us no
reason to believe that errors of the sort alleged are
commonplace or that they cannot readily be avoided
by cost-effective quality assurance measures. As the
California Court of Appeal explained in rejecting such
arguments, ‘‘[a]rguments premised on opened flood-
gates and broken dams are not persuasive [when] . . .
we suspect that only a few drops of water may spill onto
a barren desert.’’ Reisner v. Regents of the University
of California, supra, 31 Cal. App. 4th 1204. And, of
course, if the legislature perceives differently the risk
that conferring standing on individuals such as the
plaintiff will result in a health care funding crisis, then
nothing bars that body from imposing whatever restric-
tions it deems prudent on common-law actions of
this sort.
Second, we do not share the trial court’s concern that
recognizing a third-party cause of action for negligent
misreporting of STD test results would be impractica-
ble. The court reasoned that, in many such instances,
a patient such as Smith and an alleged victim such as
the plaintiff will no longer be romantically involved by
the time an action reaches the trial stage and, therefore,
that key evidence—the patient’s medical records—may
not be available. The court noted that federal and state
privacy laws could bar a plaintiff from obtaining and
presenting such records without the patient’s consent
and that the patient might have little incentive to dis-
close such records to a former partner and have his or
her medical and sexual history become part of the pub-
lic record. The court also appeared to suggest that, in
cases in which the patient does cooperate with the
plaintiff, the patient might agree to selectively provide
only those records that supported the plaintiff’s case,
leaving the physician unable to defend himself or
herself.
Although we do not discount the possibility that the
concerns that the trial court raises could present logisti-
cal hurdles in some other case, those hypothetical chal-
lenges do not counsel against allowing the plaintiff to
hold the defendant accountable in a case such as this,
in which the plaintiff apparently will have full access
to the medical records necessary to put on her case.25
As we noted in Jacoby v. Brinckerhoff, supra, 250 Conn.
86, ‘‘evidentiary constraints at trial do not, themselves,
affect the sufficiency of a stated cause of action
. . . .’’26 For all of the foregoing reasons, we hold that
the trial court incorrectly concluded that, as a matter
of law, the defendant owed no duty of care to the plain-
tiff with respect to the reporting of Smith’s STD test
results.27
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion D’AURIA, MULLINS and VERTE-
FEUILLE, Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Justices Palmer, McDonald, Robinson, D’Auria, Mullins, and Kahn. There-
after, Justice Vertefeuille was added to the panel. Justice Vertefeuille read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision. The listing of justices reflects their
seniority status on this court as of the date of oral argument.
1
The plaintiff appealed to the Appellate Court from the trial court’s judg-
ment, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
We note that the defendant could have filed a request to revise; see
Practice Book § 10-35; in order to separate out and separately address the
plaintiff’s medical malpractice and common-law negligence claims, but did
not do so.
3
As we discuss in part II of this opinion, the plaintiff’s allegations may
fit most neatly under the rubric of negligent misrepresentation. Because
neither party has addressed the issue, however, we need not determine
whether the allegations in the complaint are legally sufficient to plead a
cause of action in negligent misrepresentation under the law of this state.
4
It is true that there are rare circumstances in which expert testimony
may not be necessary to establish that medical malpractice has occurred,
such as when a surgeon leaves a surgical implement inside a patient after
completing an operation. Such gross negligence may be assessed by a jury
without reference to the prevailing standard of professional care. See, e.g.,
Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 580, 113 A.3d 932 (2015).
This is not such a case because, among other reasons, the alleged error did
not involve a failure on the part of the defendant to exercise that degree
of professional skill or judgment that a reasonably prudent health care
provider would have exercised under the circumstances.
5
It is not clear from the complaint whether Smith allegedly told the
defendant the plaintiff’s actual name or simply indicated that he had an
exclusive girlfriend for whose benefit he was seeking STD testing. Our
analysis would be the same regardless of whether the plaintiff was actually
identified to the defendant by name or merely remained identifiable on the
basis of Smith’s description of her as his exclusive girlfriend.
6
The trial court determined, and we agree, that a jury reasonably could
find that ‘‘it is foreseeable that a sexual partner of a patient who erroneously
had been told that he did not suffer from any STDs might contract the STD
with all of the health related consequences of such an illness.’’
7
We granted permission for the following groups to submit amicus briefs:
the Connecticut Trial Lawyers Association, in support of the plaintiff; and
the American Medical Association, the Connecticut Hospital Association,
and the Connecticut State Medical Society, in support of the defendant.
8
We emphasize that the question of negligent misrepresentation is not
before us, and we express no opinion as to whether Connecticut law recog-
nizes a third-party cause of action in negligent misrepresentation against
attorneys, accountants, auditors, or medical professionals. See footnote 3
of this opinion. Our point is simply that the concerns that the defendant
and the dissent raise regarding potentially limitless liability are the same
concerns that have been raised, and satisfactorily addressed, in various
professional contexts across many jurisdictions.
9
Neither party advocates that we overrule or reconsider Jarmie.
10
The dissent, while conceding that this remains an open question under
Jarmie, fails to note that, in Jarmie, we specifically distinguished cases
from other jurisdictions that imposed third-party liability on physicians in
the context of failing to warn about communicable diseases. Indeed, aside
from one brief footnote, the dissent, which quotes heavily from Jarmie,
barely acknowledges that the present case raises a fundamentally different
question—the third-party liability of a medical professional with respect to
the misreporting of a sexually transmitted disease—than that at issue in
Jarmie or any of our previous cases.
As we explain more fully hereinafter, it is beyond cavil that both the
law and the medical profession impose broader and different duties on
physicians, duties that extend beyond the confines of the physician-patient
relationship, with respect to the diagnosis of STDs and other infectious
diseases. Of course, it is not unreasonable to take the position, as the dissent
has, that, for reasons of public policy, we never should impose on physicians
any duties beyond those established by the legislature. We think it would
be a mistake, however, for this court to simply conclude that Jarmie disposes
of the issue presented in this case without carefully evaluating the fundamen-
tally distinct considerations that characterize the context of communica-
ble diseases.
11
We recognize that there could be cases in which a dispute arises over
whether the plaintiff is in fact the individual who was identifiable as a
potential victim prior to the occurrence of negligence—if, for example, the
defendant had argued that the plaintiff was not in fact the exclusive girlfriend
of whom he was made aware when Smith sought STD testing. Because the
defendant has not made that argument in the present case, for present
purposes, the identity of the plaintiff as the identifiable victim is not in
question. If it were, the question of identity would, of course, be a question
of fact for the fact finder.
12
In Jarmie, we also relied on the fact that the defendant physician had
not undertaken any affirmative action that placed the plaintiff at risk. Jarmie
v. Troncale, supra, 306 Conn. 624. In the present case, however, the plaintiff
has alleged that the defendant affirmatively informed Smith that he was
free of STDs, knowing that she might become intimate with Smith in reliance
on that information.
13
We are not persuaded by the efforts of the dissent to distinguish Squeo.
The dissent contends that Squeo is different because the claim in that case
sounded in medical malpractice rather than ordinary negligence. See foot-
note 2 of the dissenting opinion. This argument proves too much.
The entire dissent is predicated on the concern that any recognition that
physicians have duties to third parties will compromise the sanctity of
the physician-patient relationship, jeopardize the confidentiality of patient
records, promote unnecessary defensive medicine, and bring about higher
insurance rates and health care costs, driving doctors out of practice and
adversely affecting patient care. As we have explained, however; see part
I B of this opinion; medical malpractice claims are those that go to the core
of the physician-patient relationship: physicians are sued in their capacities
as medical professionals, on the basis of the specialized medical care of a
patient, involving the exercise of medical judgment. If nonpatient third
parties can have standing to prosecute claims of that sort, as Squeo says
they can, then, a fortiori, allowing them to bring claims sounding in ordinary
negligence need not intrude on the sanctity of the physician-patient relation-
ship. And, if our decision in Squeo has not resulted in the parade of horribles
that the dissent invokes (and which are, in essence, the very same horribles
that the defendants and certain of the amici in Squeo invoked); see Squeo
v. Norwalk Hospital Assn., supra, 316 Conn. 575–77; then we can have
some reassurance that the alarmist warnings in the present case will be no
more prescient.
14
One sister state court also has recognized a third-party duty to the
spouse of a hospital employee who was not informed that he had been
exposed to the human immunodeficiency virus (HIV), an STD, in the line
of work. See Vallery v. Southern Baptist Hospital, 630 So. 2d 861, 862,
868–69 (La. App. 1993), cert. denied, 634 So. 2d 860 (La. 1994). But see Doe
v. Pharmacia & Upjohn Co., 388 Md. 407, 409–10, 879 A.2d 1088 (2005)
(company that cultivated and harvested HIV cultures for incorporation into
test for HIV antibodies owed no duty of care to spouse of employee who
tested positive for HIV following workplace exposure).
15
Most of the cases on which the dissent relies address unrelated ques-
tions, such as whether a physician has a duty to third parties to properly
advise a patient as to his or her fertility status or potential to infect caregivers.
See, e.g., Dehn v. Edgecombe, 384 Md. 606, 616, 865 A.2d 603 (2005); Candela-
rio v. Teperman, 15 A.D. 3d 204, 204–205, 789 N.Y.S.2d 133 (2005). The
dissent also relies on Hawkins, which, as we have explained, is wholly
consistent with the rule that we announce today. Indeed, the court in
Hawkins concluded that a physician’s duty to accurately report the results
of an STD test does run to identified third parties whose existence is known
to the physician and who will foreseeably be infected as a result of the
inaccurate report, precisely because the duty is intended in part for the
benefit of those parties. See Hawkins v. Pizarro, supra, 713 So. 2d 1037–38.
16
American Bar Association, Recommendation (August 11–12, 2008) p. 2, avail-
able at https://www.cdc.gov/std/ept/onehundredsixteena.authcheckdam.pdf (last
visited July 5, 2019).
17
American Bar Association, Recommendation (August 11–12, 2008) p. 2, avail-
able at https://www.cdc.gov/std/ept/onehundredsixteena.authcheckdam.pdf (last
visited July 5, 2019).
18
We emphasize that our recognition of a third-party duty in the present
case is grounded in the unique characteristics of STDs in general and herpes
in particular. Specifically, one—if not the primary—reason that patients
seek to be tested for diseases such as herpes is to be able to represent to
a potential sexual partner that they are disease free. Accordingly, the dis-
sent’s fear that physicians will be liable to third parties for the improper
diagnosis of conditions such as chicken pox, influenza, or the measles is
unfounded. See footnote 9 of the dissenting opinion.
19
The dissent’s position appears to be that, if the defendant’s duty to the
plaintiff is no more than the duty he owes to Smith to accurately report the
test results, then holding the defendant liable to the plaintiff as well as
Smith ‘‘would not reduce the potential for harm because health care provid-
ers would be required to do no more than they already must do to fulfill
their duty to patients.’’ (Internal quotation marks omitted.) Setting aside the
fact that increasing a physician’s potential liability will presumably increase
his or her incentive to avoid negligent errors of the type alleged, the present
case is readily distinguishable from Jarmie, from which the dissent draws
the quoted language. In the present case, unlike in Jarmie, which involved
an automobile accident caused by the defendant physician’s patient, Smith
himself is unlikely to have any cause of action against the defendant, insofar
as there is no indication that he suffered legally cognizable damages. Accord-
ingly, the defendant will face potential liability only to an identifiable third-
party victim such as the plaintiff.
20
We note that ‘‘[m]any people in Connecticut are currently without health
insurance, usually because they think they [cannot] afford it, are unemployed
or are at higher risk due to [preexisting] conditions.’’ Insurance for the
Uninsured, available at http://www.cthealthchannel.org/individuals/group-
health-insurance/insurance-for-the-uninsured/ (last visited July 5, 2019).
21
In order to prevent the spread of genital herpes, the CDC recommends
that individuals take exactly the precautions taken by the plaintiff in the
present case: ‘‘The surest way to avoid transmission of STDs, including
genital herpes, is to abstain from sexual contact, or to be in a long-term
mutually monogamous relationship with a partner who has been tested
for STDs and is known to be uninfected.’’ (Emphasis added.) Centers for
Disease Control and Prevention, Genital Herpes—CDC Fact Sheet (Detailed
Version), available at https://www.cdc.gov/std/herpes/stdfact-herpes-
detailed.htm (last visited July 5, 2019). The Department of Public Health
also has recognized that encouraging sexually active individuals to seek
regular STD testing is a high public health priority. See Connecticut Depart-
ment of Public Health, Press Release, Department of Public Health Urges
Residents To Be Tested for Sexually Transmitted Diseases (April 28, 2010),
available at https://portal.ct.gov/DPH/Press-Room/Press-Releases---2010/
April-2010/Department-of-Public-Health-Urges-Residents-To-Be-Tested-for-
Sexually-Transmitted-Diseases (last visited July 5, 2019).
We disagree with the dissent that the legally relevant question is whether
‘‘a person harmed in the manner that this plaintiff was harmed would expect
to be compensated by the physician . . . .’’ Clearly, the plaintiff expected
there was some reasonable possibility that the defendant would be held
accountable, or she would not have brought the present action. Equally
clearly, she could not have had a high degree of confidence in a favorable
result, as no Connecticut court had previously recognized such a duty.
When the issue is, as a question of first impression, whether a previously
unrecognized common-law duty should be recognized, it makes little sense
(and is circular) for the result to hinge on whether a layperson accurately
would predict that an appellate court would rule in her favor. The salient
question in this case, rather, is whether a person in the plaintiff’s position
reasonably would expect that a physician would adopt an STD test result
reporting protocol with an eye toward the potentially serious harm that
could befall a patient’s exclusive sexual partner if a negative result should
be erroneously reported.
22
It may well be that the steady march of technology already has rendered
purely academic the trial court’s concerns, as many patients now are able
to view their test results directly through online electronic portals. See
Office of the National Coordinator for Health Information Technology, ONC
Data Brief No. 40 (April, 2018) pp. 1, 6, available at https://www.healthit.gov/
sites/default/files/page/2018-04/HINTS-2017-Consumer-Data-Brief-april-
2018.pdf (last visited July 5, 2019) (stating that, as of 2017, 52 percent of
individuals were offered online access to their medical records, and that
lab results were most frequently accessed information).
The dissent speculates that recognizing a third-party duty under these
circumstances will lead physicians such as the defendant to engage in costly
defensive medicine, which could raise the cost of health care. The dissent
does not contend, however, that recognizing such a duty will lead to the
unnecessary use of expensive medical tests or other modalities typically
associated with defensive medicine. Rather, the defensive medicine that a
physician may embrace under these circumstances is the avoidance of asking
a patient to identify his or her sexual partner or asking whether he or she
is seeking STD testing for the purpose of informing future sexual partners
of the results.
We think that there is little realistic risk that physicians will alter their
standards of care when errors of the sort alleged can be so easily and
economically avoided by adopting simple quality control measures and exer-
cising reasonable diligence. In any event, we fail to understand the harm
that would result if a physician did not go out of his or her way to specifically
identify a patient’s sexual partner.
23
We note that herpes may be transmitted by forms of intimate contact
other than intercourse. See, e.g., 1 Harrison’s Principles of Internal Medicine
(A. Fauci et al. eds., 14th Ed. 1998) p. 1085.
24
The dissent posits that our decision could have a significant impact on
the health care system because more than 15,000 new STDs are diagnosed
in Connecticut each year and, if we assume that each newly infected individ-
ual was involved in an exclusive sexual relationship, then their more than
15,000 partners all represent potential plaintiffs. This argument falters on
many levels.
Not surprisingly, having multiple and/or anonymous sexual partners is
among the primary risk factors for contracting STDs. Centers for Disease
Control and Prevention, STDs and HIV—CDC Fact Sheet (Detailed Version),
available at https://www.cdc.gov/std/hiv/stdfact-std-hiv-detailed.htm (last
visited July 5, 2019); see also L. Finer et al., ‘‘Sexual Partnership Patterns
as a Behavioral Risk Factor for Sexually Transmitted Diseases,’’ 31 Fam.
Plan. Persp. 228, 228–30 (1999). By contrast, if an individual is engaged in
a truly and mutually monogamous relationship, then he or she is unlikely
to contract an STD other than from his or her partner (who would not, in
that scenario, be a potential plaintiff in a case such as this). Accordingly,
the dissent’s assumption that each of the more than 15,000 individuals who
contracted an STD in Connecticut in 2015 was involved in an exclusive
sexual relationship seems highly implausible. Nor is there any reason to
believe that a significant percentage of STD test results are inaccurately
reported to the patient.
Moreover, we note that, of the more than 15,000 new cases of selected
STDs to which the dissent refers, the vast majority of them consist of
chlamydia and, to a lesser extent, gonorrhea; see Connecticut Department
of Public Health, STD Statistics in Connecticut, available at http://
www.ct.gov/dph/cwp/view.asp?a=3136&q=388500 (last visited July 5, 2019);
diseases that, unlike herpes, are readily treatable with antibiotics. See, e.g.,
E. Moore, supra, pp. 77, 107–109. Accordingly, even for the fraction of new
STD cases that might involve an identifiable victim, in a newly exclusive
relationship, who would become infected as a result of an erroneous test
report, the vast majority would suffer minimal damages and would be
unlikely to go to the trouble of bringing a legal action.
In sum, there is no reasonable basis for concluding that the present case
is anything other than a singularity, let alone a harbinger of thousands of
future legal actions. For example, there is no indication that other jurisdic-
tions that have allowed such actions to proceed have experienced a spike
in medical malpractice rates, and we are aware of no evidence to support
the dissent’s warning that such an increase is ‘‘very likely’’ in this state.
25
Both parties have represented that Smith executed authorizations
allowing the plaintiff to obtain and use his medical records for purposes of
this action.
26
Moreover, as in all cases, trial courts are free to take reasonable mea-
sures in mitigation of any such problems.
27
Lest there be any confusion, we emphasize that the existence of a third-
party duty with respect to the accurate reporting of STD test results does
not hinge on whether a patient and a victim remain romantically involved
or whether the patient agrees to cooperate in the victim’s legal action. Our
point is simply that, as in any legal action, the fact that a particular claim
may be difficult to prove from an evidentiary standpoint does not imply
that the claim itself is not legally cognizable.