Appeal from the Order of the Superior Court dated 12/1/09 at No. 20 MDA 2009, reconsideration denied 2/12/10, which vacated and remanded the order of the Lycoming County Court of Common Pleas, Civil Division, at No. 07-00024 dated 12/4/08
The opinion of the court was delivered by: Mr. Justice Saylor
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
ARGUED: September 13, 2011
In this appeal, we consider whether a physician who treats prison inmates has a duty at common law to warn specific corrections officers that a particular inmate has a communicable disease.
Appellee Michelle Seebold filed suit against Appellant Prison Health Services, Inc. ("PHS"), advancing a single cause of action expressly grounded on negligence theory. According to the complaint, in January 2005 PHS was providing medical services at the State Correctional Institution at Muncy pursuant to a contract with the Pennsylvania Department of Corrections ("DOC"). At that time, Appellee worked as a corrections officer at the prison and was assigned to strip search its female inmates before and after they received visitors. Upon information and belief, the complaint asserted, approximately twelve such inmates were infected with methicillin-resistant staphylococcus aureus ("MRSA"), a contagious bacterial infection. Appellee also alleged that the skin condition of these inmates was "characterized by PHS as 'spider bites.'" Complaint
¶7. As a result of Appellee's contact with the inmates, she averred, she became infected with MRSA.
Appellee contended that PHS's staff knew or should have known of the infections and owed a duty of reasonable care to "the staff and inmates at SCI Muncy to warn them of and protect them from acquiring an MRSA infection from those inmates known to be carrying the bacteria in a communicable state." Id.
¶23. According to the complaint, PHS's staff breached this asserted duty by failing to: perform bacterial cultures on inmates with suspicious skin lesions suggestive of MRSA; ensure that inmates with MRSA were removed from the general prison population to prevent the spread of the disease; advise the prison staff on how to avoid acquiring MRSA from an infected inmate; and advise Appellee of precautions that she should take in strip searching inmates infected with MRSA. See id.
¶25. The complaint asserted that, since PHS's staff members were acting within the course and scope of their employment, liability should be imputed to PHS. Appellee requested compensation for pain and suffering, medical costs (which she noted may be subject to subrogation), and unspecified other financial losses occasioned by her injuries. See id. ¶27.
Appellee also filed a certificate of merit, in which her counsel attested that "the claim that [PHS] deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom [PHS] is responsible deviated from an acceptable professional standard[.]"
PHS interposed preliminary objections asserting that PHS owed no affirmative duty of care running to Appellee as a third-party non-patient; Appellee's failure to identify specific PHS staff members or to describe their actions was inconsistent with the requirement for a plaintiff to delineate all material facts necessary to state a claim; PHS's mere employment of medical professionals did not establish an ability on its part to direct the rendering of medical services in specific physician-patient relationships; and the asserted facts failed to support the element of causation.
The common pleas court sustained PHS's preliminary objections based on the no-duty contention. Initially, the court recited that, in determining whether a defendant owes a duty of care to a plaintiff, several factors are considered, including: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. See Seebold v. Prison Health Servs., Inc., No. 07-00024, slip op. at 2 (C.P. Lycoming, Dec. 4, 2008) (citing Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000)).
The court explained further that Appellee was asserting a duty under DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990). There, applying Section 324A of the Second Restatement of Torts,*fn1 the Court held that a physician
owed a duty to his patient's boyfriend to warn and properly advise the patient concerning how to prevent the spread of a communicable disease to which she was exposed.*fn2 The common pleas court found DiMarco to be distinguishable from the current matter, however, in that DiMarco involved a failure to properly advise the patient, whereas the present claim is based on the treating physician's alleged failure to directly notify (and take other affirmative measures relative to) Appellee, a third-party non-patient. See Seebold, No. 07-00024, slip op. at 3. In the parlance of the common pleas court:
The facts of DiMarco and the instant case are fundamentally distinguishable. In the case at bar, the Plaintiff, a prison guard at SCI Muncy alleges that she contracted a disease from a prison inmate and that the treating physician and prison health service entity should have given notice to Plaintiff not the patient. In DiMarco, it was the physician's failure to give certain notices to the patient herself that gave rise to the physician's duty to a third party.
What Plaintiff is asking of this Court is to interpret the Restatement (Second) and the holding of DiMarco in a way in which the Courts of this Commonwealth have never done. That is, Plaintiff wishes this Court to hold that a healthcare provider owes a duty to warn all potential third parties that could conceivably come in contact with a patient whom they have treated for a contagious or communicable disease. This Court is unwilling to traverse the uncharted waters of a health care provider's duty to third parties without a map and compass provided by the Pennsylvania Supreme Court or
Appellee lodged an appeal in the Superior Court. Although she previously had represented that the obligations and failures attributed to PHS were entirely derivative from duties and breaches of its employee health care professionals, in Appellee's statement of matters complained of on appeal, she asserted that the common pleas court "erred in holding that a private corporation providing health care services to inmates in a state correctional institution owes no duty of care to those people working in the state correctional institution."*fn3
On review, the Superior Court vacated and remanded in a memorandum decision, first discussing DiMarco's imposition of a duty upon physicians who treat a patient with a communicable disease to give proper advice to such patient to prevent spreading the disease. This duty, the court noted, is designed to protect the well-being of third persons, since the patient's health already has been compromised. See Seebold v. Prison Health Servs., Inc., No. 20 MDA 2009, slip op. at 7-8 (Pa. Super. Dec. 1, 2009) (quoting DiMarco, 525 Pa. at 562, 583 A.2d at 424-25). The intermediate court also discussed Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 675 A.2d 314 (1996), in which a cause of action in favor of a third-party non-patient was found to exist where a medical doctor failed to advise the patient about the dangers of spreading her disease to the unborn children of others.*fn4 Although Troxel was factually distinct from DiMarco in that the physicians in Troxel gave no advice rather than erroneous advice, the Superior Court noted that the Troxel court did not find such distinction relevant. Rather, Troxel concluded, generally, that the duty undertaken by a physician treating a patient with a contagious disease extends to third persons and includes the obligation "to correctly inform the patient about the contagious nature of the disease in order to prevent its spread to those who are within the foreseeable orbit of risk of harm." Troxel, 450 Pa. Super. at 88, 675 A.2d at 322; see also F.D.P. v. Ferrara, 804 A.2d 1229 (Pa. Super. 2002) (explaining that "the duty is imposed because 'it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease'"), quoted in Seebold, No. 20 MDA 2009, slip op. at 11.
The Superior Court proceeded to discuss its concerns, and those of this Court, about expanding liabilities of healthcare providers to third-party non-patients. It recognized, for example, that, although this Court has held that a therapist has a duty to warn his patient's intended victim of the patient's stated intent to kill the victim, see Emerich v. Phila. Ctr. for Human Dev., Inc., 554 Pa. 209, 720 A.2d 1032 (1998), the Court was careful to limit that duty to instances involving an immediate threat of serious bodily injury to an identified, or readily identifiable, individual. See id. at 227, 720 A.2d at 1041. Furthermore, the intermediate court quoted the following commentary offered in a concurring opinion in Emerich by then-Chief Justice Flaherty, which was later endorsed by the full Court:
I write to express my concern that this is yet another extension of liability in an already too litigious society. Here, in my view, the extension is justified by the circumstances presented, but I would go no further. Yes, one can reason in so many instances that an extension of liability is merely a small step flowing naturally and logically from the existing case law. Yet each seemingly small step, over time, leads to an ever proliferating number of small steps that add up to huge leaps in terms of extensions of liability. At some point it must stop and I would draw the line in this area of the law with what is expressed by the court in this case -- no further.
Emerich, 554 Pa. at 235, 720 A.2d at 1045 (Flaherty, C.J., concurring); see also Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 353, 733 A.2d 623, 630 (1999) (endorsing former Chief Justice Flaherty's comments from Emerich).
The Superior Court also referenced this Court's decision in Witthoeft, which declined to sanction a private remedy in favor of the estate of a bicyclist who was killed by a driver with poor visual acuity, where the driver's ophthalmologist failed to report the driver's condition to the Department of Transportation as required by statute. The intermediate court noted that this Court thus had refused to extend a physician's duty to the public at large. See Witthoeft, 557 Pa. at 352-53, 733 A.2d at 630.
Turning to the present controversy, the Superior Court observed that Appellee's claim was different from those in DiMarco and Troxel, as she was asserting that PHS had failed to diagnose MRSA.*fn5 It found this distinction to be potentially significant in light of a suggestion in Witthoeft that DiMarco's holding was based on the defendant having given incorrect advice that was affirmatively relied upon, whereas presently, no advice was given because no diagnosis of a contagious disease was made. Nevertheless, the Superior Court explained that its conclusion in Troxel that the plaintiff stated a cause of action despite the absence of any advice regarding the diagnosis has not been disapproved by this Court and, as such, remains binding on the Superior Court. The court reasoned:
PHS's alleged negligent failure to diagnose twelve cases of MRSA in inmates does not insulate PHS from its resulting failure to take steps to prevent further spreading of the disease within the prison. Troxel establishes that a cause of action exists whether the health care provider gives the patient incorrect advice or no advice at all. Furthermore, [Appellee]'s complaint makes clear that she relied upon the diagnosis of the inmates' skin condition as spider bites. Thus, [her] complaint alleges both misfeasance by PHS and her reliance upon it.
Seebold, No. 20 MDA 2009, slip op. at 12-13 (citation omitted) (emphasis added).*fn6
Although such comments focused on advice to a patient (as opposed to advice to third-party non-patients, which is the premise of Appellee's complaint and, accordingly, the common pleas court's decision), the Superior Court ultimately did not find such distinction controlling. In this regard, while crediting PHS's position that DiMarco and Troxel "clearly hold that physicians must provide accurate information to their patients, not to the third party plaintiff," Seebold, No. 20 MDA 2009, slip op. at 15 (emphasis added), the intermediate court nevertheless pronounced that Appellee had "alleged [a] cause of action in accordance with DiMarco and Troxel." Id. at 16. To address this apparent incongruity, the court stated only that it could not "speculate, in the absence of a developed factual record, as to precisely what measures could have been taken in this case -- in the context of a prison environment -- consistent with PHS's regulatory and ethical obligations." Id.*fn7
The Superior Court also disagreed with PHS's contention that allowing the case to proceed would open the door for a multitude of third-party lawsuits. The court concluded, rather, that Appellee is a specifically-identifiable person and one of the most likely to contract a contagious skin disease, since she was assigned to strip search inmates.*fn8 According to the intermediate court, these facts place Appellee in a "narrow class of highly foreseeable plaintiffs" and do not support an extension of the duty to the public at large. Id. at 14. While the court also acknowledged PHS's and amici's reliance on statutes and regulations governing various aspects of disease reporting and control in the DOC,*fn9 it held that the precautions that Appellee should have undertaken and their effectiveness were questions that could not be resolved at the preliminary objections stage, but rather required factual development. See id. at 15. Finally, the Superior Court admonished that "nothing in our holding should be construed as requiring a healthcare provider to violate any applicable legal or ethical obligation." Id. at 15-16.
Then-Judge Orie Melvin filed a dissenting statement expressing, without further explanation, that the majority had impermissibly expanded the holding of DiMarco.
Appeal was allowed based on PHS's petition for allowance of appeal centered on the salient questions concerning whether this Court should impose a new, affirmative duty upon physicians to warn and advise third-party non-patients in ...