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*********************************************** 
DOE v. COCHRAN—DISSENT

ROBINSON, C. J., with whom McDONALD and

KAHN, J., join, dissenting. I respectfully disagree with

the majority’s conclusion that Connecticut physicians,

with respect to the diagnosis and reporting of their

patients’ sexually transmitted disease (STD) test

results, owe a direct duty of care to ‘‘identifiable third

parties who are engaged in an exclusive romantic relationship with a patient at the time of testing and, therefore, may foreseeably be exposed to any STD that a

physician fails to diagnose or properly report.’’ In my

view, the majority’s conclusion is inconsistent with our

recent decision in Jarmie v. Troncale, 306 Conn. 578,

590–91, 50 A.3d 802 (2012), in which we deemed three

principal considerations to be especially pertinent in

determining what, if any, duty of care is owed by a

medical professional to a nonpatient third party, specifically (1) Connecticut precedent, (2) the foreseeability of

the alleged harm, and (3) public policy considerations.

Following Jarmie, I conclude instead that the defendant physician, Charles Cochran, owed no duty to the

plaintiff, Jane Doe, and that the trial court properly

granted the defendant’s motion to strike the plaintiff’s

single count complaint. Because I would affirm the judgment subsequently rendered by the trial court in favor

of the defendant, I respectfully dissent.

I begin by noting my agreement with the majority’s

recitation of the factual and procedural history of the

case. I also note my substantial agreement with the

majority’s analysis in part I of its opinion, including the

standard of review and the treatment of the plaintiff’s

single count complaint as having alleged both medical

malpractice and common-law negligence, similar to our

treatment of the action in Jarmie.

1

Id., 583–86. I part

ways with the majority at part II of its opinion.

‘‘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 defendant violated that duty in the particular situation at hand. . . . If a court determines, as a

matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the

defendant. . . .

‘‘Duty is a legal conclusion about relationships

between individuals, made after the fact, and imperative

to a negligence cause of action. The nature of the duty,

and the specific persons to whom it is owed, are deter-
mined by the circumstances surrounding the conduct

of the individual. . . . 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 defendant. 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 which resulted was foreseeable, but the test is, would the ordinary [person] in the

defendant’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 which lead the law to

say that the plaintiff is entitled to protection. . . . The

final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to

whether the defendant’s responsibility should extend

to such results.’’ (Internal quotation marks omitted.)

Id., 589–90.

In Jarmie, we considered whether to recognize a

duty of care owed by a physician to a third party nonpatient. In that case, a patient crashed her vehicle into

the plaintiff after blacking out while driving. Id., 580.

The plaintiff in Jarmie claimed that the defendant, a

physician, had breached a duty to warn the patient of

the risks of a latent driving impairment associated with

a particular medical condition. Id. In concluding that

the physician did not owe a duty of care to a third

party nonpatient, this court considered three principal

factors: (1) Connecticut precedent, (2) foreseeability,

and (3) public policy considerations, including the decisions of courts in other jurisdictions. Id., 589–91.

We began in Jarmie by analyzing Connecticut precedent, and observed that it ‘‘is useful to view Connecticut

common-law rules defining the duty of health care providers in conjunction with [General Statutes] § 52-190a,

the medical malpractice statute, because all of the relevant case law followed enactment of that provision.

The statute had several purposes, including: (1) to put

some measure of control on what was perceived as a

crisis in medical malpractice insurance rates; (2) to

discourage frivolous or baseless medical malpractice

actions; (3) to reduce the incentive to health care providers to practice unnecessary and costly defensive

medicine because of the fear of such actions; (4) to
reduce the emotional, reputational and professional toll

imposed on health care providers who are made the

targets of baseless medical malpractice actions; and (5)

the replacement of proportional liability for the preexisting system of joint and several liability as a central

part of [tort reform], so as to remove the health care

provider as an unduly attractive deep pocket for the

collection of all of the plaintiff’s damages. . . . Thus,

a principal goal of § 52-190a, and of tort reform generally, was to limit the potential liability of health care

providers. . . .

‘‘The common law, reflecting the goals of the tort

reform movement and the legislature’s purpose in

enacting § 52-190a, likewise disfavors the imposition of

liability on health care providers. The established rule is

that, absent a special relationship of custody or control,

there is no duty to protect a third person from the

conduct of another. . . . Thus, physicians owe an ordinary duty to their patients not to harm them through

negligent conduct and an affirmative duty to help them

by providing appropriate care. . . . There 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.’’ (Citations omitted; internal quotation

marks omitted.) Id., 591–92.

‘‘Consistent with the purpose of the medical malpractice statute and the limited duty of health care providers

under the common law, this court has exercised

restraint when presented with opportunities to extend

the duty of health care providers to persons who are

not their patients. As a consequence, we have held that

a nurse and an emergency medical technician owed

no duty of care to a patient’s sister, who fainted while

observing a medical procedure performed on the

patient; Murillo v. Seymour Ambulance Assn., Inc.,

[264 Conn. 474, 477–78, 823 A.2d 1202 (2003)]; a psychiatrist owed no duty to a patient’s former spouse for any

direct injury to the marriage caused by the allegedly

negligent treatment of the patient for marital difficulties; see Jacoby v. Brinckerhoff, 250 Conn. 86, 88, 95–98,

735 A.2d 347 (1999); a psychiatrist who evaluated children for possible sexual abuse owed no duty of reasonable care to protect the children’s father, the suspected

abuser, from false accusations of abuse arising out of

the performance of the evaluations; Zamstein v. Marvasti, 240 Conn. 549, 550–51, 559–61, 692 A.2d 781

(1997); and a physician owed no duty of care to his

patient’s daughter, who suffered emotional distress as

a result of observing the patient’s health deteriorate

because of the physician’s malpractice. Maloney v. Conroy, 208 Conn. 392, 393, 403, 545 A.2d 1059 (1988). The

only time that we have even contemplated enlarging

the duty of a health care provider to include a person

who is not a patient was when we considered whether

a psychotherapist owed a duty to a third party to control

an outpatient who was not known to have been danger-
ous. See Fraser v. United States, [236 Conn. 625, 627–30,

674 A.2d 811 (1996)]. In that case, we determined that

no duty existed in the absence of a showing that the

victim was either individually identifiable or, possibly,

was either a member of a class of identifiable victims

or within the zone of risk to an identifiable victim. Id.,

634. Accordingly, although there is no directly comparable Connecticut case law on which to rely, our precedent, in general, does not support extending the duty

of care . . . because, with one limited exception that

does not apply . . . we repeatedly have declined, in a

variety of situations, to extend the duty of health care

providers to persons who are not their patients.’’ (Citation omitted; emphasis omitted; internal quotation

marks omitted.) Jarmie v. Troncale, supra, 306 Conn.

592–93.

Although the precise factual circumstances of this

case present an issue of first impression, I conclude that

Connecticut precedent, as explained in Jarmie, demonstrates this court’s consistent reluctance to extend the

legal duties of medical professionals to nonpatient third

parties. Indeed, no Connecticut case decided after Jarmie has disturbed the soundness of that assessment.2

Therefore, Connecticut precedent militates against recognizing a legal duty in the present case.

Consistent with Jarmie, I next consider a classic duty

analysis focused on the foreseeability of the alleged

harm. Id., 594–98. I agree with the majority’s observation that Jarmie left open the possibility that a duty

may exist in a case where the victim is identifiable,

and I also agree with the majority that, construing the

complaint in the present case in a light most favorable to

sustaining its sufficiency, the plaintiff was identifiable.3

Whereas the plaintiff in Jarmie was neither an identifiable victim nor a member of an identifiable class of

victims as a general motorist who might come in close

proximity to a vehicle operated by the patient following

her diagnosis; id., 597–98; the patient in the present

case explained to the defendant that he had sought STD

testing for the benefit of his new, exclusive girlfriend,

the plaintiff, thus making her identifiable to the defendant. Our analysis in Jarmie did not, however, hinge

solely on the issue of foreseeability. We noted that ‘‘[a]

simple conclusion that the harm to the plaintiff was

foreseeable . . . cannot by itself mandate a determination that a legal duty exists.’’ (Internal quotation marks

omitted.) Id., 590. Considerations of foreseeability must

be tempered by the reluctance in Connecticut precedent

to extend the duties of health care providers to nonpatient third parties and the weight of public policy considerations, which militate against recognizing a duty in

the present case.

Our final consideration in Jarmie was whether public

policy considerations favored or disfavored recognition

of a duty. In addressing public policy concerns, we
considered the purposes of tort compensation and ‘‘four

specific factors to be considered in determining the

extent of a legal duty as a matter of public policy. . . .

(1) the normal expectations of the participants in the

activity under review; (2) the public policy of encouraging participation in the activity, while weighing the

safety of the participants; (3) the avoidance of increased

litigation; and (4) the decisions of other jurisdictions.’’4

(Internal quotation marks omitted.) Id., 603.

‘‘[T]he fundamental policy purposes of the tort compensation 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. . . . [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 upon us to consider those

risks.’’ (Citations omitted; internal quotation marks

omitted.) Id., 599–600.

With regard to the compensation of innocent parties,

individuals like the plaintiff in the present case may

well be covered by public or private health insurance

policies, so it is not necessarily the case that the plaintiff, or others in her position, will be left without compensation. Additionally, as we observed in Jarmie, ‘‘to

the extent an injured party may not be covered by a

. . . health insurance policy, the financial cost to victims . . . does not necessarily outweigh the impact of

the proposed duty on thousands of physician-patient

relationships across the state and the potentially high

costs associated with increased litigation . . . .’’ Id.,

601. As for the deterrence of wrongful conduct, if, as

the majority concludes, the duty owed to the plaintiff

is the same duty owed to the patient—namely, the accurate reporting of STD testing results—then ‘‘expanding

the liability of health care providers would not reduce

the potential for harm because health care providers

would be required to do no more than they already

must do to fulfill their duty to patients.’’ Id., 601–602.

Finally, the same concerns we voiced in Jarmie concerning interference with the physician-patient relationship and an increase in litigation are present in this

case, and are discussed more fully subsequently in this

dissenting opinion.

I now move to the four specific factors discussed in

Jarmie. ‘‘Starting with the expectations of the parties,
long established common-law principles hold that physicians owe a duty to their patients because of their

special relationship, not to third persons with whom

they have no relationship. Furthermore, there is no state

statute or regulation that imposes a duty on health care

providers to warn a patient for the benefit of the public.’’

Id., 603–604. It is unlikely that a person harmed in the

manner that this plaintiff was harmed would expect to

be compensated by the physician, with whom he or she

has no special relationship, in light of the privileged

status of the physician-patient relationship and the

common-law protections granted to physicians. Consequently, the normal expectations of the parties weigh

against recognition of a duty in the present case, as

they did in Jarmie.

Turning to the public policy of encouraging participation in the activity under review, recognizing a duty of

care under the circumstances of this case ‘‘would be

inconsistent with the physician’s duty of loyalty to the

patient, would threaten the inherent confidentiality of

the physician-patient relationship and would impermissibly intrude on the physician’s professional judgment

regarding treatment and care of the patient.’’ Id., 606.

Indeed, ‘‘[u]nlike most duties, the physician’s duty to

the patient is explicitly relational: physicians owe a duty

of care to patients. . . . Mindful of this principle, we

have recognized on more than one occasion the physician’s duty of undivided loyalty to the patient . . . and

the patient’s corresponding loyalty, trust and dependence on the professional opinions and advice of the

physician. . . . Undivided loyalty means that the

patient’s well-being must be of paramount importance

in the mind of the physician. Indeed, this is the foundation for the patient’s reciprocal loyalty, trust and dependence on the physician’s medical treatment and advice.

Consistent with this view, we have stated that, [a]s a

matter of public policy . . . the law should encourage

medical care providers . . . to devote their efforts to

their patients . . . and not be obligated to divert their

attention to the possible consequences to [third parties]

of medical treatment of the patient. . . . It is . . . the

consequences to the patient, and not to other persons,

of deviations from the appropriate standard of medical

care that should be the central concern of medical practitioners. . . .

‘‘Extending a health care provider’s duty also would

threaten the confidentiality inherent in the physicianpatient relationship because lawsuits alleging a breach

of the duty would compel the use of confidential patient

records by defending physicians. The principle of confidentiality lies at the heart of the physician-patient relationship and has been recognized by our legislature.

General Statutes § 52-146o was enacted in 1990; see

Public Acts 1990, No. 90-177; to address the need to

protect the confidentiality of communications in order

to foster the free exchange of information from patient
to physician . . . . The statute provides that a health

care provider shall not disclose patient information in

their files without the patient’s explicit consent. See

General Statutes § 52-146o (a). Thus, when a patient

decides to bring a claim against a health care provider,

the patient makes a purposeful decision to waive confidentiality. . . . Subsection (b) (2) of § 52-146o, however, contains an exception whereby patient consent

is not required for the disclosure of communications

or records by a health care provider against whom a

claim has been made. Consequently, if [an injured third

party] files an action against the health care provider

of [a patient], records containing the patient’s medical

history will very likely be disclosed in court and subjected to public scrutiny. The effect of expanding the

duty of a health care provider in this fashion cannot

be underestimated. Physician-patient confidentiality is

described as a privilege . . . . When that confidentiality is diminished to any degree, it necessarily affects

the ability of the parties to communicate, which in turn

affects the ability of the physician to render proper

medical care and advice. Accordingly, it is not in the

public interest to extend the duty of health care providers to third persons in the present context because

doing so would jeopardize the confidentiality of the

physician-patient relationship.’’5

(Citations omitted;

emphasis altered; footnote omitted; internal quotation

marks omitted.) Jarmie v. Troncale, supra, 306 Conn.

606–609.

Connecticut state law reflects additional patient confidentiality concerns that militate against the recognition of a duty in the present case. State law demonstrates

the overarching primacy of patient confidentiality, even

in this context of infectious disease.6 Connecticut has

a communicable disease reporting system and a list of

specific diseases and conditions that physicians are

required to report to public health officials. See Regs.,

Conn. State Agencies § 19a-36-A2 (requiring Commissioner of Public Health to issue list of reportable diseases); see also Connecticut Department of Public

Health, ‘‘Reportable Diseases, Emergency Illnesses and

Health Conditions, and Reportable Laboratory Findings

Changes for 2019,’’ 39 Conn. Epidemiologist 1 (2019)

(list of reportable diseases). The reporting is made by

physicians to the public health authority, but it is government officials who may act on the information and

intervene with any third parties, not the reporting physician. See General Statutes. § 19a-215 (d). Put differently,

the physician has no statutory duty vis-a`-vis any third

party beyond merely reporting the disease or condition

to the appropriate authority.

Another instructive example of the legislature’s concern for confidentiality can be seen in Connecticut’s HIV

laws, upon which the majority relies for the proposition

that physicians’ public health obligations may transcend

their duties to individual patients, observing that the
state ‘‘permit[s] 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.’’ The HIV statute is protective of confidentiality insofar as it does not

permit a physician to directly inform a sexual partner

about a patient’s HIV test results under circumstances

similar to this case. See General Statutes § 19a-584 (b)

(physician may only directly inform known partner if

both partner and patient are under physician’s care

or if patient has requested it). Although the majority’s

opinion does not impose a duty to warn on physicians

under the circumstances of this case, the overarching emphasis placed on confidentiality by the legislature, including the legislature’s decision not to impose

further statutory duties on physicians to warn under

similar circumstances, coupled with the threat that confidential records may be disclosed in litigation without

the patient’s consent, suggest that imposition of a duty

under the circumstances of this case is incongruous

with the legislature’s repeated emphasis on patient confidentiality. Put plainly, recognizing a duty under the

circumstances of this case endangers participation in

the activity under review because it interferes with physicians’ duty of loyalty to their patients and threatens

the sanctity of physician-patient confidentiality.

Moving to the avoidance of the increased risk of

litigation, the Department of Public Health has published STD reporting statistics for 2015 that indicate

approximately 13,269 reported cases of Chlamydia,

2,092 reported cases of Gonorrhea, and 99 reported

cases of Syphilis that year. Connecticut Department of

Public Health, ‘‘Chlamydia, Gonorrhea, and Primary and

Secondary Syphilis Cases Reported by Town,’’ (2015),

available at https://portal.ct.gov/-/media/Departmentsand-Agencies/DPH/dph/infectious_diseases/std/

Table12015pdf (last visited July 11, 2019). Assuming

that each of those individuals was in an exclusive sexual

relationship, there would have been 15,460 additional

individuals to whom physicians may have owed a duty

under the majority’s opinion in the present case. This

increase in the risk of litigation threatens more than

just the pocketbooks of physicians and their insurers;

it threatens patient care. A likely consequence of this

expansion of liability is that physicians will be reticent

to discuss their patients’ romantic relationships or sexual behavior in an attempt to avoid identifying third

parties to whom the physician could be liable, despite

such an approach not necessarily being in the patient’s

best interests. This reaction, referred to as ‘‘defensive

medicine’’ in medical literature, involves physicians

altering treatment and advice as part of an effort to

avoid liability, and it is considered to have very negative

and costly effects on the provision of health care. See

J. Greenberg & J. Green, ‘‘Over-testing: Why More Is

Not Better,’’ 127 Am. J. Med. 362, 362–63 (2014); M.
Mello et al., ‘‘National Costs of the Medical Liability

System,’’ 29 Health Aff. 1569, 1572 (2010); see also B.

Nahed et al., ‘‘Malpractice Liability and Defensive Medicine: A National Survey of Neurosurgeons,’’ (2012), p. 4,

available at https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC3382203/pdf/pone.0039237.pdf (last visited July

11, 2019).

An additional concern is the effect that an expansion

of the potential liability of physicians is likely to have

on malpractice insurance rates. Connecticut health care

professionals cannot obtain a license to practice medicine without showing that they have adequate malpractice insurance. See General Statutes § 20-11b (a). If

insurance premiums for physicians increase to an unaffordable level, physicians may leave the practice of

medicine or, at the least, stop offering the services that

instigate such high premiums. An instructive example

of this concern is the early 2000s crisis in the field of

obstetrics. ‘‘Soaring malpractice insurance costs led to

the closings of trauma and maternity wards across the

country [and] forced many obstetricians to give up

obstetrics, restrict services, deny certain high-risk

patients, become consultants, relocate, retire early, or

abandon their practices all together.’’ (Footnote omitted.) S. Domin, ‘‘Where Have All the Baby-Doctors

Gone? Women’s Access to Healthcare in Jeopardy:

Obstetrics and the Medical Malpractice Insurance Crisis,’’ 53 Cath. U. L. Rev. 499, 499–500 (2004). The threat

of something similar happening in Connecticut requires

that we exercise caution, particularly in an area where

the potential consequences are such that the legislature

is in a better position to address these concerns than

our courts are.

Indeed, this is an issue on which the legislature has

previously acted. As we observed in Jarmie, part of

the impetus behind the enactment of our medical malpractice statute, § 52-190a, was ‘‘to put some measure

of control on what was perceived as a crisis in medical

malpractice insurance rates.’’ (Internal quotation marks

omitted.) Jarmie v. Troncale, supra, 306 Conn. 591.

One such measure of control, the requirement that an

opinion letter issued by a similar health care provider

be attached to a medical negligence complaint, was

suggested by the General Assembly’s Legislative Program Review and Investigations Committee after it

conducted hearings following a significant increase in

medical malpractice insurance rates in the early 2000s.

SeeLegislativeProgram ReviewandInvestigationsCommittee, Connecticut General Assembly, Medical Malpractice Insurance Rates (December 2003). Because

the majority’s opinion recognizes a duty to potentially

thousands of new plaintiffs, which is very likely to have

an impact on medical malpractice rates, this court

should not throw caution to the wind and take such

action when the legislature is in a much better position

to investigate the issue, and make findings and recom-
mendations on the subject, as it has done in similar

circumstances.

Given that the legislature has acted extensively in

the areas of both STD reporting and to provide physicians relief from professional liability, I am hesitant to

usurp its ‘‘primary responsibility for formulating public

policy’’ by recognizing a new duty to third party nonpatients. (Internal quotation marks omitted.) Mayer v.

Historic District Commission, 325 Conn. 765, 780, 160

A.3d 333 (2017). Indeed, in Sic v. Nunan, 307 Conn.

399, 410, 54 A.3d 553 (2012), this court recognized that

primary responsibility for public policy in declining to

impose a duty on motorists stopped at an intersection

to keep their wheels pointed straight, emphasizing that

the legislature had ‘‘not seen fit to enact any statutes’’

in that respect. Thus, I disagree with the majority’s

decision to adopt a duty in the present case that will

expand the pool of potential litigants, increase the risk

of litigation, and threaten access to and the quality of

patient care in this state—in contravention of legislative

action on point.

Finally, turning to decisions of other jurisdictions, I

note that there is no clear trend in our sister courts

that supports usurping the legislature’s responsibility

for public policy and creating the duty that the majority

recognizes in the present case. To be sure, there is

case law that supports the decision of the majority. See

Reisner v. Regents of the University of California, 31

Cal. App. 4th 1195, 1197–201, 37 Cal. Rptr. 2d 518 (1995)

(physician owed duty to unknown and unidentifiable

sexual partner of patient to warn patient or her parents

of patient’s HIV positive status), review denied, California Supreme Court, Docket No. S045274 (May 18, 1995);

C.W. v. Cooper Health System, 388 N.J. Super. 42, 58–62,

906 A.2d 440 (App. Div. 2006) (hospital and its physicians owed direct duty to unknown and unidentifiable

sexual partner of patient to warn patient of patient’s

HIV positive status); DiMarco v. Lynch Homes-Chester

County, Inc., 525 Pa. 558, 563–64, 583 A.2d 422 (1990)

(physicians owed duty to sexual partner of patient with

hepatitis not to give erroneous advice to patient because

class of foreseeable victims included anyone who was

intimate with patient);7 Estate of Amos v. Vanderbilt

University, 62 S.W.3d 133, 138 (Tenn. 2001) (university

medical center owed duty to future husband and future

daughter of HIV positive patient to warn patient so she

might take precautionary measures preventing transmission of HIV because future husband and future

daughter were within class of identifiable persons

within zone of danger). I find, however, that sister state

cases declining to recognize a third party duty for physicians are more consistent with our state’s public policy

and precedent. See, e.g., Hawkins v. Pizarro, 713 So.

2d 1036, 1037–38 (Fla. App.) (physician owed no duty

to future spouse of patient when physician improperly

advised patient she tested negative for hepatitis C),
review denied, 728 So. 2d 202 (Fla. 1998); Dehn v. Edgecombe, 384 Md. 606, 622, 865 A.2d 603 (2005) (physician

owed no duty to wife of patient when physician negligently failed to provide patient with minimally acceptable medical care in connection with a vasectomy);

Herrgesell v. Genesee Hospital, 45 App. Div. 3d 1488,

1490, 846 N.Y.S.2d 523 (2007) (physician owed no duty

to daughter of patient when daughter contracted hepatitis B from patient because physician does not owe duty

to nonpatient who contracts illness from patient, even

if physician knows nonpatient cares for patient or is

family member of patient); Candelario v. Teperman,

15 App. Div. 3d 204, 204–205, 789 N.Y.S.2d 133 (2005)

(physician owed no duty to daughter of patient when

daughter contracted hepatitis C, even though physician

was aware daughter was caring for patient); D’Amico

v. Delliquadri, 114 Ohio App. 3d 579, 581–83, 683 N.E.2d

814 (1996) (physician owed no duty to girlfriend of

patient when girlfriend contracted genital warts from

patient after defendant cared for and treated patient).

Consequently, the decisions of our sister courts demonstrate no clear trend on the broader recognition and

extent of physicians’ third party duties, let alone the

specific duty that the majority recognizes in the present case.8

Accordingly, I conclude, consistent with Jarmie v.

Troncale, supra, 306 Conn. 578, that the defendant did

not owe the plaintiff, who was not his patient, a duty

of care in the present case. Given the potential ramifications of recognizing such an expanded duty of care, I

would leave that potential expansion of liability to the

legislature—which is better equipped than this court

to make the public policy findings attendant to that

expansion of liability.9 See, e.g., State v. Lockhart, 298

Conn. 537, 574–75, 4 A.3d 1176 (2010) (declining to

require recording of custodial interrogations and deferring to legislature because ‘‘it is in a better position

to evaluate the competing policy interests at play in

developing a recording requirement in that it can invite

comment from law enforcement agencies, prosecutors

and defense attorneys regarding the relevant policy considerations and the practical challenges of implementing a recording mandate’’). Accordingly, I conclude that

the trial court properly granted the defendant’s motion

to strike.

Because I would affirm the judgment of the trial

court, I respectfully dissent.

1

I agree with the majority’s observation in footnote 3 of its opinion that

‘‘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.’’ I nevertheless respectfully disagree with part II B

1 of its opinion, in which the majority discusses principles of negligent

misrepresentation at length in combining them with other tort law principles,

in order to create a duty of care that we have not previously recognized in this

state. Because I do not agree that principles of negligent misrepresentation

support recognizing a direct duty of care owed by physicians to nonpatients,
I respectfully disagree with this portion of part II B 1 of the majority’s opinion.

2 The majority relies on Squeo v. Norwalk Hospital Assn., 316 Conn. 558,

113 A.3d 932 (2015), to bolster its argument that Connecticut precedent is

‘‘unsettled with respect to the particular question presented here.’’ That case

is, however, distinguishable. In Squeo, a case involving a bystander emotional

distress claim and medical malpractice, and not ordinary negligence, we

only cited to Jarmie to note that our rejection of a bar on a cause of action

for bystander emotional distress in the context of medical malpractice was

consistent with our rejection of a per se rule barring third-party tort claims

in the absence of a physician-patient relationship. Squeo v. Norwalk Hospital

Assn., supra, 573–74. Squeo does not disturb our assessment of Connecticut

precedent in Jarmie that this court is reluctant to extend the duties of

medical professionals to nonpatient third parties. See id., 580–81 (concluding

that ‘‘bystander to medical malpractice may recover for the severe emotional

distress that he or she suffers as a direct result of contemporaneously

observing gross professional negligence such that the bystander is aware,

at the time, not only that the defendant’s conduct is improper but also that

it will likely result in the death of or serious injury to the primary victim’’).

Further, the majority’s reliance on Squeo illustrates a problem with the

majority’s efforts to limit this case to the precise circumstances presented.

The majority effectively uses Squeo as evidence that we have already stepped

through the door left open in Jarmie, and, ‘‘if our decision in Squeo has

not resulted in the parade of horribles that the dissent invokes . . . then

we can have some reassurance that the alarmist warnings in the present

case will be no more prescient.’’ As I argue subsequently in this dissenting

opinion, the public policy concerns implicated in the context of STDs apply

with equal or greater force to any number of different infectious diseases,

a contention the majority disputes. Just as the majority relies on Squeo to

support an expansion of liability under the circumstances of the present

case, this court may subsequently rely on today’s decision as a precedent

to support further expansions of liability in other contexts. Because I find

the majority’s efforts to distinguish STDs from other infectious diseases in

the context of the present case unavailing, I see it as unlikely that, in the

future, the Connecticut Bar or even the courts of this state will view the

precedential value of today’s decision as limited to STDs.

3

I disagree with the majority’s observation that, despite quoting ‘‘heavily’’

from Jarmie, I ‘‘barely [acknowledge]’’ that the present case raises a different

question than the one at issue in Jarmie. I believe my agreement with the

majority’s observation that Jarmie left open the possibility that a duty may

exist in a case where the victim is identifiable is acknowledgment enough

that this case cannot be simply disposed of under Jarmie.

The majority further states that ‘‘it would be a mistake . . . to simply

conclude that Jarmie disposes of the issue presented in this case without

carefully evaluating the fundamentally distinct considerations that characterize the context of communicable diseases.’’ I take no issue with that

statement. In fact, the standard articulated by Jarmie requires evaluation

of policy considerations. The majority and I have each evaluated the policy

considerations, and conclude differently as to whether they militate in favor

of or in opposition to recognition of a duty in this case. In essence, the

majority believes certain policy concerns are so strong that this court should

walk through the door left open in Jarmie. I, however, would stop at the

threshold of that doorway.

I further emphasize that the majority misunderstands this dissent as standing for my belief ‘‘that, for reasons of public policy, we never should impose

on physicians any duties beyond those established by the legislature.’’

(Emphasis added.) Instead, I take the position that, when, as in the present

case, our court is so deeply divided as to whether public policy concerns

support recognition of a legal duty, and when the implications of such

recognition of a duty may be so vast, the legislature is in a far better position

to make such a determination given its institutional advantages with respect

to considering and receiving evidence as to matters of public policy. See,

e.g.,Cefaratti v.Aranow, 321 Conn. 593, 632–33, 141 A.3d 752 (2016) (Zarella,

J., dissenting) (observing that, in deciding whether doctrine of apparent

authority or apparent agency should be available to tort plaintiffs, ‘‘[i]t is

not the role of this court to strike precise balances among the fluctuating

interests of competing private groups . . . such as, on the one hand, people

who are similarly situated to the plaintiff . . . and, on the other hand,

hospitals and other health-care institutions,’’ and noting that this ‘‘function

has traditionally been performed by the legislature, which has far greater

competence and flexibility to deal with the myriad complications [that] may

arise from the assignment of liability’’ [citation omitted; internal quotation

marks omitted]); Campos v. Coleman, 319 Conn. 36, 65–66, 123 A.3d 854

(2015) (Zarella, J., dissenting) (‘‘[T]his court has the authority to change

the common law to conform to the times. In a society of ever increasing
interdependence and complexity, however, it is an authority this court

should exercise only sparingly. . . . [T]he legislature, unlike this court, is

institutionally equipped to gather all of the necessary facts to determine

whether a claim for loss of parental consortium should be permitted and,

if it should, how far it should extend. The legislature can hold public hearings,

collect data unconstrained by concerns of relevancy and probative value,

listen to evidence from a variety of experts, and elicit input from industry

and society in general. Further, elected legislators, unlike the members of

this court, can be held directly accountable for their policy decisions.’’

[Citation omitted; emphasis in original; footnote omitted.]); Doe v. Hartford

Roman Catholic Diocesan Corp., 317 Conn. 357, 439, 119 A.3d 462 (2015)

(‘‘balancing of interests that are accommodated by statutes of limitations’’

is ‘‘factual [matter] within the legislative purview’’); State v. Lockhart, 298

Conn. 537, 574, 4 A.3d 1176 (2010) (observing that ‘‘determining . . . parameters’’ of state constitutional rule requiring recording of custodial interrogations ‘‘requires weighing competing public policies and evaluating a wide

variety of possible rules’’ and noting that ‘‘such determinations are often

made by a legislative body because it is in a better position to evaluate the

competing policy interests at play’’).

4 Before addressing the precedents of other jurisdictions and public policy

considerations, the majority states that, ‘‘[i]n Jarmie, after we concluded

that Connecticut precedent 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.’’ Although I

agree that Connecticut precedent did not per se bar the imposition of such

a duty, I emphasize that this court left little doubt in Jarmie as to how

Connecticut precedent viewed the imposition of similar duties on health

care providers. As noted previously, this court explicitly concluded that,

‘‘although there is no directly comparable Connecticut case law on which

to rely, our precedent, in general, does not support extending the duty of

care . . . because, with one limited exception that does not apply . . . we

repeatedly have declined, in a variety of situations, to extend the duty of

health care providers to persons who are not their patients.’’ Jarmie v.

Troncale, supra, 306 Conn. 593.

5 The majority contends, however, that such confidentiality concerns may

be present in other cases, but do not exist in a case like this, in which a

plaintiff will ostensibly have full access to the pertinent medical records

via the patient, her exclusive romantic partner. But this reasoning would

further limit the majority’s holding to the alleged facts of this case, meaning

that in a nearly identical future scenario, in which all that is different from

the present case is that the patient is uncooperative with the plaintiff’s

action with regard to the disclosure of medical records—such as might

happen if the relationship dissolved—there might be no recognition of a

duty. I am aware of no Connecticut case law suggesting that our recognition

of a duty of care should turn on the alleged willingness of a nonparty patient

to have his or her medical records made available in a nonpatient’s action

sounding in ordinary negligence. Consequently, I respectfully find the majority’s response to confidentiality concerns—that such concerns may be present in other cases, but do not exist in the present case—unconvincing.

6

I note that in its discussion of public policy concerns, the majority

focuses a great deal of attention on public health concerns, namely, the

diagnosis and treatment of infectious diseases. The majority suggests that

in the context of such diseases, ‘‘a physician’s duties and loyalties necessarily

must be divided between the patient and other people whom the patient

may infect,’’ and ‘‘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.’’

7 The dissenting justice in DiMarco observed that ‘‘the dangers of adopting

a negligence concept of duty analyzed in terms of scope of the risk or

foreseeability are considerable and are to be avoided. These dangers include

. . . the prospect of inducing professionals to narrow their inquiries into

the client or patient situation, to the detriment of the client or patient, so

as to avoid possible liability toward third parties which might come from

knowing ‘too much.’ ’’ (Footnote omitted.) DiMarco v. Lynch Homes-Chester

County, Inc., supra, 525 Pa. 565–66 (Flaherty, J., dissenting).

8 The majority attempts to distinguish these cases as not analogous enough

to the precise circumstances of the present case, leaving the majority with

a handful of cases it deems worthy of consideration. Even if I were to agree

with the majority’s winnowing of the list of cases we should consider to be

relevant, I would hardly call a four to one majority in favor of the majority’s
position a convincing consensus among our sister courts, especially when

so few courts have weighed in on the precise question presented.

9 Finally, even if I were to agree with the majority’s recognition of a direct

duty of care on the facts of the present case, which I respectfully do not,

the future ramifications of the majority’s opinion would nevertheless give

me pause. Although the majority repeatedly cautions that its holding is

limited and narrow, I nevertheless find this contention troubling because

its implications portend just the opposite result. First, although the majority

states that its decision is limited strictly to cases involving the diagnosis of

STDs, the public policy concerns discussed therein apply with equal or

even greater force to any number of different infectious diseases, such as

chickenpox, influenza, and measles. It is likely that in cases with identifiable

nonpatient third parties, the majority’s opinion in this case will be held up

as a logically convincing precedent to further extend the potential liability

of health care providers. Second, the majority’s foreseeability analysis is

inherently subjective. What if the physician has awareness of a romantic

partner’s existence independent of knowledge obtained from the patient,

such as through a social relationship? There is little reason why this court’s

logic would not counsel in favor of recognizing a duty in such a case,

concerns of which would be exacerbated should the majority’s decision be

extended beyond STDs to other infectious diseases, such as influenza. Put

differently, the majority’s opinion sets a precedent that will easily open the

floodgates to a great expansion of potential third party liability for health

care providers.