In DeVito v. Peri, a Brooklyn trial court recently awarded summary judgment to the defendant and dismissed plaintiff’s claims for medical malpractice, lack of informed consent, and wrongful death. The claims arose from the murder by the doctor’s patient (Mr. DeVito) of his wife (who was plaintiff’s mother).
Specifically, plaintiff alleged that defendant doctor Peri inappropriately and improperly prescribed and continued to prescribe Zoloft to Mr. DeVito without warning his family of potential side effects of the drug.
The court focused its analysis on whether the defendant doctor had a “special relationship” with, and hence owed a duty to, the non-patient decedent. The court began by outlining the law of “duty”:
The courts have repeatedly held that, in order to reach any discussion about deviation from accepted medical practice, it is necessary first to establish the existence of a duty. In the absence of duty, there is no breach and therefore no liability. The existence of a duty is a question of law to be determined by the court. It is generally not an appropriate subject for expert opinion.
It is also axiomatic that [f]oreseeability should not be confused with duty. Neither the concept of foreseeability nor the zone of risk defines a duty, but instead only circumscribes the boundaries of a duty after it has been established that one exists.
It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient. Therefore, a doctor’s duty of care is ordinarily only one owed to his or her patient and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor’s patient.
It then discussed the narrow circumstances under which a doctor owes a duty to a non-patient:
Although, generally, a doctor only owes a duty of care to his or her patient, a doctor’s duty can, in limited circumstances, encompass nonpatients who have a special relationship with either the physician or the patient. Thus, this is the exception and not the rule. Indeed, the Court of Appeals holds that [a]lthough in limited circumstances a physician’s duty of care has been extended to a patient’s family members, our courts have been especially circumspect in doing so.
After reviewing the case law, the court held that such a duty did not exist here:
In this case, the circumstances do not give rise to a special relationship between the decedent and the defendant which would evoke a duty to warn on the part of the defendant. The treatment rendered to Mr. DeVito was sought by the patient himself and its purpose was to promote his well being by treating his depression as well as his other health problems. Dr. Peri’s duty to the patient was to improve his health by treating his maladies; Dr. Peri bore no obligation to the family. There is no evidence that, in the course of Dr. Peri’s treatment of the patient, he contemplated treating Mrs. DeVito in conjunction with the treatment he was rendering to Mr. DeVito or that the treatment rendered to Mr. DeVito directly involved the decedent.
Furthermore, the treatment Mr. DeVito sought from Dr. Peri was not to prevent injury to his wife. Indeed, no history of violence is noted anywhere in Dr. Peri’s records and the family did not report that Mr. DeVito displayed physical acts of violence. In sum, Mr. DeVito behavior as discussed with Dr. Peri was not such as to evoke a duty to require him to attempt to control the conduct of Mr. DeVito.
Additionally, accepting Theresa DeVito’s asertions that her father appeared restless and agitated and that this was communicated to defendant, there is no indication that by using Zoloft Mr. DeVito posed a threat of violence to his wife, family or others. Thus, there is no evidence that the physician knew, or should have known, that failure to warn of any alleged side effects of the medication heightened Mrs. DeVito’s risk of harm. There is also no evidence that the defendant, by prescribing Zoloft to the patient, created a serious risk of harm to his wife. Significantly, a thorough reading of the packaged warnings given by the manufacturer identifying the risks associated with the medication does not reveal homicide as a possible side effect. The warnings clearly state suicide as a known adverse reaction with the warning applying most specifically to children. Indeed the warnings note that studies have shown no increase in the risk of suicide in adults beyond the age of 24 and that the probability of risk of suicidality decreases in the 65 and older population. Mr. DeVito was 75 years old. Thus, the evidence does not support a claim that physical harm was the direct outcome of the physician’s alleged malpractice.
In addition, the fact that the decedent and the plaintiff were present at some of Mr. DeVito’s office visits did not give rise to a special relationship:
Although the family was involved in the care, treatment and medical testing of the patient, the recipient of the treatment and the one in a position to rely on the advice of the physician, was Mr. DeVito, not his family. The court is cognizant that family members receive a benefit from the successful treatment of a loved one, however this is a gratuitous benefit and not a duty owed to the family.
The court also dismissed plaintiff’s claim for lack of informed consent, which was based on Public Health Law § 2805-d(3). That section provides:
Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.
However, this statute provides a cause of action that “extends to only the patient.” It was therefore “not the law” that defendant had “a duty to obtain informed consent from Mrs. DeVito for treatment rendered to Mr. DeVito.”
Finally, the court dismissed plaintiff’s claim for wrongful death, since “no duty was owed to the decedent on the medical malpractice claim.”