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Walters v. UPMC Presbyterian Shadyside

Supreme Court of Pennsylvania

June 19, 2018


          ARGUED: October 18, 2017

          Appeal from the Order of the Superior Court entered July 21, 2016 at Nos. 309 WDA 2015, 310 WDA 2015, 311 WDA 2015, 312 WDA 2015, 309 WDA 2015, 310 WDA 2015, 311 WDA 2015, 312 WDA 2015, affirming in part and reversing in part the Order of the Court of Common Pleas of Allegheny County entered February 6, 2015 at Nos. GD-12-018339, GD-12-016165, GD-12-024324, GD-14-000899, GD-12-018339, GD-12-016165, GD-12-024324, GD-12-0000899 and remanding.



          WECHT, JUSTICE

         In these consolidated cases, we granted allowance of appeal to determine whether and to what extent a hospital and a health care staffing agency have a legal duty to prevent a terminated employee from causing harm to patients at another health care facility.

         Plaintiffs claim that David Kwiatkowski, a radiology technician formerly employed at UPMC Presbyterian Hospital ("UPMC"), who was placed there by staffing agency Maxim Healthcare Services, Inc. ("Maxim"), engaged in the diversion and substitution of intravenous fentanyl. Specifically, Kwiatkowski injected himself with fentanyl from a preloaded syringe, refilled the syringe with saline or another substance, and then replaced the now-contaminated syringe where it could be used by others to inject patients. In doing so years later at a Kansas hospital, Kwiatkowski allegedly communicated hepatitis C to Plaintiffs, who were patients at that hospital.

         Pursuant to federal regulation, UPMC (but not Maxim) indisputably had a legal obligation to report the diversion of controlled substances to the United States Department of Justice's Drug Enforcement Administration ("DEA"). UPMC failed to do so. The Superior Court determined that Plaintiffs established that both UPMC and Maxim (collectively, "Defendants")[1] had a duty to report Kwiatkowski's misconduct to the DEA and to "law enforcement, " and that Defendants' failure to do so could provide a basis for negligence claims. See Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104 (Pa. Super. 2016). We affirm the Superior Court's ruling with respect to UPMC (albeit with a modest caveat), and we reverse the Superior Court's ruling to the extent it imposed the same duty upon Maxim.

         I. Background and Procedural History[2]

         From March 2008 to May 2008, Kwiatkowski was on staff at UPMC, but employed by Maxim. On May 7, 2008, a hospital staff member saw Kwiatkowski walk into an operating room, select a syringe, place it inside his clothing, and leave. UPMC later determined that a syringe containing fentanyl, a Schedule II controlled substance, [3]was missing and had been replaced with a syringe containing another liquid. UPMC personnel confronted Kwiatkowski, and found on his person three empty fentanyl syringes. They then searched his locker, and found a syringe labeled as morphine.[4]Kwiatkowski's urine tested positive for fentanyl and opiates. UPMC immediately barred Kwiatkowski from working at the hospital. However, UPMC failed to report the diversion to the DEA, [5] despite its obligation to do so pursuant to regulations promulgated under the Comprehensive Controlled Substances Act of 1970 ("CSA" or "Act").[6]

         From May 2008 to April 2010, Kwiatkowski worked at seven different hospitals in three states. In May 2010, he was placed by a staffing agency at Hays Medical Center in Hays, Kansas. Plaintiffs were patients at Hays Medical Center during Kwiatkowski's tenure. They were administered medication through a syringe that Kwiatkowski had used to inject himself, had refilled with saline, and then had replaced where it would be reused. Plaintiffs later tested positive for the same strain of hepatitis C carried by Kwiatkowski.

         Kwiatkowski's ongoing misconduct did not end in Kansas. In 2012, after his employment at Exeter Hospital in New Hampshire, the New Hampshire Department of Health announced that more than thirty patients at that hospital who had been treated in the department where Kwiatkowski then worked had tested positive for hepatitis C. Thereafter, many patients whose paths had crossed Kwiatkowski's at various hospitals were urged to be tested for hepatitis C. On July 19, 2012, the United States District Court for the District of New Hampshire issued an arrest warrant for Kwiatkowski, based upon violations of 21 U.S.C. § 843(a)(3) ("acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge") and 18 U.S.C. § 1365(a)(3) (tampering with any consumer product that affects interstate or foreign commerce, or its container or label, with reckless disregard for creating a risk of death or bodily injury to another, when serious bodily injury resulted). In 2013, Kwiatkowski pleaded guilty to numerous federal charges, and was sentenced to thirty-nine years in prison.

         In 2012, Plaintiffs commenced this action, asserting claims for negligence against UPMC and Maxim and negligence per se against UPMC, as well as related claims for vicarious liability, punitive damages, and loss of consortium.[7] UPMC and Maxim filed preliminary objections in the nature of demurrers. The trial court, finding that Defendants owed no legal duty to Plaintiffs, sustained the objections and dismissed Plaintiffs' claims. The trial court determined that, to impose such a duty would expose Defendants and others similarly situated to liability unbounded by geography or time, and that, as a matter of sound policy, these consequences outweighed the social benefits of imposing such a duty.

         Plaintiffs appealed the trial court's order to the Superior Court, challenging only the dismissal of their negligence claims against both Defendants, effectively abandoning their negligence per se claim against UPMC. Applying the multifactorial test set forth in Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), the Superior Court reversed the trial court as to both Defendants. The Superior Court concluded that Defendants' relationship with Kwiatkowski, their knowledge of the conduct that led to his dismissal, their legal obligation to report such diversions, and the foreseeable risk of grievous, widespread harm associated with the continuation of such conduct elsewhere, all weighed in favor of imposing a legal duty to protect third parties from Kwiatkowski's misconduct. In the Superior Court's view, Plaintiffs pleaded "facts that would support imposition of a common[-]law duty of care upon UPMC and Maxim to report Kwiatkowski's criminal conduct to the DEA and/or other law enforcement agencies for prosecution." Walters, 144 A.3d at 121.

         II. Discussion

         A. Common-Law Duty

         Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances." Martin v. Evans, 711 A.2d 458, 462 (Pa. 1998). "While the existence of a duty is a question of law, whether there has been a neglect of such duty is generally for the jury." Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 1998). "[T]he plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm." Martin, 711 A.2d at 462. To establish a prima facie case of negligence, a plaintiff must plead that "the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage." Id. at 461. The only issue before this Court today is the question of duty.[8]

         "The determination whether to impose affirmative common-law duties as a predicate to civil liability is a matter of law; accordingly, our review is plenary." Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1243 (Pa. 2012); see Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012). We have characterized the duty inquiry as the "primary" inquiry in negligence. Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003). To assist us in identifying a previously unrecognized duty, we rely upon five factors: "(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." Althaus, 756 A.2d at 1169.[9]

         Although our Althaus analysis applies principles well-rooted in the common law, we long have recognized that determining whether to impose a duty of care in novel circumstances can prove difficult, requiring policy judgments generally reserved for legislative action. In Althaus, and in several other cases, we have quoted Dean William Prosser's influential comments:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make of it.Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. . . . The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind[, " Palsgraf v. Long Island R. Co., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)].

Althaus, 756 A.2d at 1169 (quoting Sinn v. Burd, 404 A.2d 672, 681 (Pa. 1979) (quoting William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953))).[10] Thus, determining whether to impose a duty often requires us to weigh "amorphous public policy considerations, which may include our perception of history, morals, justice and society." Althaus, 756 A.2d at 1169 (citing Gardner v. Consol. R. Corp., 573 A.2d 1016, 1020 (Pa. 1990)).

         Our concern for the hazards of judicial policy-making has prompted our continuing restraint.

[T]he adjudicatory process does not translate readily into the field of broad-scale policymaking. Seebold, 57 A.3d at 1245 . . . . For this reason, and because the Legislature possesses superior policymaking tools and resources and serves as the political branch, we took the position in Seebold that we would not direct the substantive common law away from well-established general norms in the absence of some clear predominance of policy justifications. See id. (citing Cafazzo v. Cent. Med. Health Servs., Inc., 668 A.2d 521, 537 (Pa. 1995), for the proposition that, "[b]efore a change in the law is made, a court, if it is to act responsibly must be able to see with reasonable clarity the results of its decision and to say with reasonable certainty that the change will serve the best interests of society" (citation omitted)).

Lance v. Wyeth, 85 A.3d 434, 454 (Pa. 2014) (citations modified; footnote omitted). Mindful of our long-standing caution, we turn now to review three cases that preceded Althaus, Althaus itself, and then several cases that followed. Most of these precedents have been considered in this case by the lower courts and addressed in arguments of the parties.

         In DiMarco v. Lynch Homes—Chester County, 583 A.2d 422 (Pa. 1990), this Court considered "whether a physician owes a duty of care to a third party where the physician fails to properly advise a patient who has been exposed to a communicable disease, and the patient, relying upon the advice, spreads the disease to a third party." Id. at 423. In that case, a technician stuck herself with a needle she had used to draw blood from an individual infected with hepatitis. The physicians she consulted indicated that, if she remained symptom-free for six weeks, she could be confident that she had not contracted hepatitis. Although the physicians did not specifically direct her to abstain from sexual activity during that period, the technician did so for eight weeks, during which she remained asymptomatic. Thereafter, she had sex with the plaintiff. Both later learned that they were infected, and plaintiff sued the physicians and others for negligence and related claims.

         Applying the Restatement (Second) of Torts § 324A ("Liability to Third Person for Negligent Performance of Undertaking"), we noted that, for the patient to state a claim, the defendant-physicians must have undertaken "to render services to another which [they] should recognize as necessary for the protection of a third person, " a principle we characterized as "essentially a requirement of foreseeability." DiMarco, 583 A.2d at 561 (quoting Cantwell v. Allegheny Cty., 483 A.2d 1350, 1353-54 (Pa. 1984)). We underscored the obligation of a physician to give sound advice, and observed that, the patient's health already having been compromised, providing advice regarding contagion serves solely to protect the health of others. Id. at 562. Accordingly, a physician's duty extends to those "within the foreseeable orbit of risk of harm." Id. (quoting Doyle v. S. Pittsburgh Water Co., 199 A.2d 875, 878 (Pa. 1964)). Thus, a third person within that "orbit" could state a cause of action against a physician who neglected that duty. See Troxel v. A.I. DuPont Institute, 675 A.2d 314, 322-24 (Pa. Super. 1996) (finding a duty to inform a patient to avoid contact with pregnant women because the patient's contagious disease presented potentially lethal health risks to fetuses).

         In Emerich, 720 A.2d 1032, this Court held that a mental health counselor had a duty to protect a woman from her ex-boyfriend when he threatened during a counseling session to harm her. The patient in question, Gad Joseph, was diagnosed with various disorders and substance abuse problems, and had a history of threatening his ex-girlfriend, Teresa Hausler. After Hausler ended their relationship and moved in with another man, Joseph called his counselor and suggested that he was going to kill Hausler. The counselor summoned Joseph for an emergency session, during which Joseph indicated that Hausler intended to return that day to their formerly-shared residence to collect her things, and that he would kill her if she did so. The counselor recommended that Joseph voluntarily commit himself, but Joseph claimed that he had regained control. The counselor then permitted Joseph to leave. Hausler later contacted the counselor, who urged her not to go to the apartment. Hausler disregarded the counselor's warning and continued to the residence, where Joseph shot and killed her.

         Based upon these facts, Emerich (as administrator of Hausler's estate) filed suit alleging that the counselor had, and failed to discharge, a duty to take adequate steps to protect Hausler. The trial court found that no such duty existed in Pennsylvania, and that, even if such a duty existed, the counselor satisfied it when he warned Hausler. The Superior Court affirmed on the same bases.

         On appeal, this Court held "that a mental health care professional, under certain limited circumstances, owes a duty to warn a third party of threats of harm against that third party." Id. at 1036.[11] Acknowledging the general common-law rule that there is no duty to control the conduct of a third party to protect another individual from harm, we noted that an exception exists "where a defendant stands in some special relationships with either the person whose conduct needs to be controlled or in a relationship with the intended victim of the conduct, which gives to the intended victim a right of protection." Id. (citing Restatement (Second) of Torts § 315).[12] The Court determined that a majority of courts in other jurisdictions had concluded that a mental health counselor has a special relationship with his patient that imposes an affirmative duty to protect an identified potential victim from harm. Citing DiMarco, the court further found "no reason why an analogous duty to warn should not be recognized when the disease of the patient is a mental illness that may pose a potentially greater and more immediate risk of severe harm or death to others." Id. at 1039. Finally, the Court assessed policies militating for and against such a duty, and found no benefit to concealment that would outweigh the benefit of imposing a duty to warn an intended victim.[13]

         In Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), a case that UPMC contends the Superior Court should have found controlling, see supra n.9, we considered ophthalmologist Dr. James Kiskaddon's duty to a cyclist when his patient, Helen Meyers, fatally struck that cyclist with her car. Although required to do so by regulation, Dr. Kiskaddon had failed to notify Meyers and the Pennsylvania Department of Transportation ("PennDOT") that Meyers' visual acuity had fallen below the legal threshold for licensure.

         As in DiMarco, the plaintiff argued, the decedent fell within the scope of a foreseeable risk of harm as a consequence of Dr. Kiskaddon's failure to inform Meyers and PennDOT of Meyers' disability. This Court noted that DiMarco's focus was upon the communicable nature of the hepatitis, and indicated that "the threat of the spread of a communicable disease was paramount in the court's mind." Id. at 628 (citing Troxel, 675 A.2d 314). In such a circumstance, "the physician's duty to provide accurate information is critical, because information regarding the risks of cont[r]acting the disease or the dangers of transmitting the disease are often times not known to the general public." Id. However, in Witthoeft, "we [were] faced with poor vision, certainly not a communicable disorder or a disorder of imminent threat to health." Id. We held that this distinction vitiated the public health concerns that underlay our decision in DiMarco.

         Further distinguishing DiMarco, we rejected the proposition that the harm in the Witthoeft case was sufficiently foreseeable to support a duty under the circumstances:

It may be reasonably foreseeable that a patient exposed to an infectious and communicable disease will injure a third party unless properly informed to prevent the spread of the disease. However, we believe that it is an unreasonable extension of the concepts of duty and foreseeability to broaden a physician's duty to a patient and hold a physician liable to the public at large within the factual scenario of this case. This is especially true where, as here, [the doctor] did not cause or aggravate a medical condition that affected the patient's driving . . . .
[Plaintiff's] decedent is simply not a foreseeable victim that this [C]ourt will recognize. We will not stretch foreseeability beyond the point of recognition for to do so will be to make liability endless. To allow liability in this case would be to make physicians absolutely liable for the various acts of their patients. This we will not countenance.

Id. at 630.[14]

         In Althaus, a counselor, based upon an adolescent patient's allegations that her father had touched her inappropriately, reported the father to Children and Youth Services. The patient then was removed from her family's home and subjected to a medical examination, which produced no evidence of sexual activity. A clinical psychologist interviewed the patient, and referred her to a psychiatrist who specialized in treating sexual abuse victims. During approximately one year of treatment with that specialist, the scope of the patient's increasingly lurid, improbable allegations expanded to include other family members, her father's coworkers, and strangers. These allegations precipitated a series of criminal proceedings against the alleged abusers. The patient's dubious allegations culminated in a hearing to determine her competency to testify at those criminal proceedings, where the specialist ultimately opined that the patient could not distinguish fact from fantasy. The court then dismissed the criminal charges against the father. The patient eventually recanted her allegations, and was reunited with her family.

         The parents sued the specialist for medical malpractice, alleging that she had negligently treated their daughter, exacerbating her condition and subjecting them to the negative consequences associated with being accused of sexual abuse. A jury entered a verdict in the parents' favor, the Superior Court affirmed, and the specialist appealed, contesting her duty to communicate with parents in derogation of her professional duty of confidentiality to the patient.

         After sounding our cautionary refrain regarding the risks of instantiating duties that are new to the common law, we debuted the above-mentioned five-factor rubric, by which we sought to give shape to considerations that had emerged as beneficial in prior cases implicating a novel common-law duty. See Althaus, 756 A.2d at 1169. With regard to the first factor, the relationship of the parties, this Court noted that the specialist played no role in the criminal investigation of the parents and never testified against them. Moreover, the specialist's "professional relationship with [the patient did] not create the type of relationship between [the specialist and the parents] to support the imposition of a duty of care, " and thus her "professional obligations and legal duties . . . related exclusively to her patient." Id. at 1169-70. Next, acknowledging the need to prevent sexual abuse and the importance of psychological treatment, we found that social utility, the focus of the second factor, disfavored imposing a duty of care to non-patients, especially alleged abusers. In connection with the third factor, the Court recognized that substantial and foreseeable harm caused by a false accusation presented a countervailing concern in favor of a duty to protect third parties against false accusations, but noted that the patient's accusation against the parents had preceded treatment with the specialist, which weighed against imposing the duty in that case. With regard to the fourth factor, the consequences of imposing a duty, the Court emphasized that successful mental health counseling substantially depends upon trust, fostered by the promise of confidentiality, which would be compromised by obligating counselors to protect parties outside the therapeutic relationship. Thus, that consideration also weighed against the imposition of a duty. Fifth and finally, the Court found that the overarching public interest in preserving therapeutic confidentiality eclipsed any countervailing considerations. Accordingly, we declined to impose a duty upon the specialist.

         After Witthoeft and Althaus, one might fairly conclude that our willingness to contemplate previously unrecognized duties of care had grown strikingly narrow.[15] Yet those decisions, like all of the decisions under review, necessarily hinged upon finegrained assessments of public policy relative to the precise circumstances presented. See Phillips, 841 A.2d at 1008-1009 ("No one of [the Althaus] factors is dispositive. Rather, a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant."). This was made clear in a series of cases that followed Althaus, in which we found that a third-party duty would lie.

         In Sharpe v. St. Luke's Hospital, 821 A.2d 1215 (Pa. 2003), for example, we imposed a duty associated with a hospital's drug-testing procedures because it was foreseeable that returning false positives to an employer who retained the hospital to test its employees would lead to adverse consequences for the tested employees. We based that decision upon a combination of common sense and the hospital's knowledge of why it had been retained to conduct such testing.

         In Phillips, 841 A.2d 1000, we found it foreseeable that butane lighters would fall into the hands of children and that, absent child-safety features, children playing with lighters would set fires. There, while we recognized the societal benefit of furnishing a "reliable, convenient method to create a flame, " we detected no social utility in producing a lighter without a child safety feature. Id. at 1009. In considering the nature of the risk imposed and the foreseeability of harm, we found the risk of injury and property damage threatened by children playing with lighters substantial, citing evidence that children playing with lighters killed or injured nearly one thousand people per year and spawned costs measured in hundreds of millions of dollars. Furthermore, it was foreseeable that children would come into possession of lighters and that of these children some would start fires. The quantum of risk and the foreseeability of harm thus weighed in favor of imposing a duty. Ultimately, the nominal cost of adopting safety features paled before the strong public interest in avoiding the "catastrophic effects on human beings as well as property" caused by child-started fires, and thus it was in the public interest to impose a duty.[16]

         In R.W. v. Manzek, 888 A.2d 740 (Pa. 2005), claimants were the parents of a child who was brutally assaulted while attempting to sell candy to a stranger in connection with a school fundraiser. The parties raised numerous claims in state and federal court, among which was a state negligence claim against a company that specialized in facilitating school fundraisers, premised upon that defendant's duty to take steps to educate the children it assisted regarding the dangers inherent in fundraising. The plaintiffs principally relied upon the relationship and risk/foreseeability factors to establish the duty. The relationship, they maintained, stemmed from the fact that the victim had been recruited for the effort, that she had been enticed to sell to strangers by the promise of various incentives, and that the defendant benefited directly from her participation. Furthermore, "the harm that befell [her] . . . fell within a general, broad class of risks which the [defendant's] fundraising activities foreseeably created." Id. at 747. We determined that the case hinged upon the question of foreseeability, and found the plaintiffs' averments sufficient to establish that the defendant "had actual or constructive knowledge of the dangers inherent in conducting school fundraising activities as prize[-]winning competitions and in encouraging elementary school students to approach strangers, " and failed to warn the students or parents either verbally or in their written materials. Id. at 751. Thus, we held that the plaintiffs had set forth a claim upon which relief could be granted.

         In Thierfelder, and shortly thereafter in Seebold, we returned to a more stringent account. In the former case, a physician engaged in a sexual relationship with a patient whom he was treating for anxiety and depression. During treatment, the patient called the doctor her hero, indicated that he had cured her problems, and shared her belief that she was in love with him, allegedly exhibiting signs of the "transference phenomenon, " a process by which a patient displaces feelings she has for one individual in her life onto the therapist. The plaintiffs asserted medical malpractice and negligence based upon the physician's failure to recognize, and/or choice to exploit, her condition. We found that foreseeability weighed against imposing such a duty:

[A] general practitioner unfamiliar with transference, or less familiar with the effects of the treatment, or who is not deliberately employing the technique in undertaking basic or situational care of a patient's mental and emotional difficulties, is less likely to foresee that an apparently consensual sexual affair with the patient may risk worsening the patient's psychological problems . . . . The harm and the risks are real with regard to the patient, but this Althaus factor focuses on foreseeability respecting the doctor and whether a concomitant duty may reasonably be imposed on a general practitioner based solely on the nexus of some degree of mental or emotional care and the occurrence of a sexual relationship.

Thierfelder, 52 A.3d at 1276-77.

         In Seebold, we held that a prison health service provider had no duty to a corrections officer who contracted a communicable infection from an inmate whom the provider's agents had treated. In that case, the officer alleged that Prison Health Services failed to diagnose inmates (whom she was tasked with strip-searching) with methicillin-resistant staphylococcus aureus (i.e., MRSA). The trial court rejected the plaintiff's argument that DiMarco established such a duty, but the Superior Court disagreed.

         This Court agreed with the trial court. We distinguished DiMarco's imposition of a duty to provide an infected patient with sound advice regarding infection and transmission from requiring a health care provider "to identify, seek out, provide information to, or otherwise take affirmative steps outside the physician-patient relationship to protect third-party non-patients." Seebold, 57 A.3d at 1243. Turning to the Althaus factors, we underscored our "default position that, unless the justifications for and consequences of judicial policy[-]making are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties." Seebold, 52 A.3d at 1245.

Among other considerations, the courts' reluctance to impose new affirmative duties reflects that the wider field of common-law duties is governed appropriately by existing broad precepts which have been well traveled. In scenarios involving an actor's affirmative conduct, he is generally "under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act." Restatement (Second) of Torts § 302, cmt. a (1965). . . . Generally, however, there is no duty to protect or rescue someone who is at risk on account of circumstances the defendant had no role in creating. See, e.g., Yania v. Bigan, 155 A.2d 343, 346 (Pa. 1959) (citing Restatement (Second) of Torts § 314 ["Duty to Act for Protection of Others"] for the proposition that a mere observer has no duty to rescue).
Affirmative duties . . . are the primary exception to the no-duty rule in rescue/protection scenarios where the defendant did not create the risk resulting in harm to the plaintiff—these most often arise out of special relationships of care between the parties.

Seebold, 57 A.3d at 1246 (citations modified or omitted; footnote omitted).

         The plaintiff relied primarily on the foreseeability of the harm and the protection of corrections officers, declining to provide material advocacy regarding the other factors recognized in our case law and particularly in Althaus. We emphasized that neither foreseeability nor any other single consideration of policy is "alone determinative of the duty question." Id. at 1249. Rather, we must afford such weight to each factor as is warranted by "the particularized nature of the asserted duty at hand and context." Id. Ultimately, we found that deficiencies in the plaintiff's advocacy substantially impaired our ability to engage in deeper review. Id. at 1248-50 (favoring the "default approach" where the plaintiff failed to provide "policy arguments" of the sort prescribed under Althaus in favor of focusing on foreseeability and the putative controlling effect of DiMarco, Troxel, and the Restatement). In the absence of such advocacy, we concluded that the policy interest in protecting corrections officers must yield where the proposed means of protection presents prison healthcare providers with serious logistical challenges, threats to physician-patient confidentiality, and expansive liability, especially when the risk at issue might be ameliorated by other means.[17]

         B. UPMC's Reporting Obligation

         With this common-law background in mind, we turn now to the case at hand. While we employ a conventional Althaus analysis in assessing the prudence of imposing the duty that Plaintiffs seek, we begin by reviewing the legal obligation that Plaintiffs submit as supporting the imposition of that duty.

         Although Plaintiffs abandoned their negligence per se claims by declining to appeal the portion of the trial court's order sustaining Defendants' demurrers as to those claims, duty in ordinary negligence nonetheless may be informed by compliance with legal requirements, as it was in Witthoeft (even if in that case we ultimately declined to impose a duty).[18] Indeed, inasmuch as we often cite our preference for legislative judgments regarding social policy over judicial ones, considering the intentions reflected in statutes and regulations puts us on a firmer footing than we enjoyed in a number of the foregoing cases. In this case, the Superior Court and Plaintiffs have relied substantially upon the DEA regulations as an important, though by no means the exclusive, source of the duty they would have us impose.

         Pursuant to authority vested in the DEA by the Controlled Substances Act, individuals and entities that are registered to distribute or dispense controlled substances must notify the DEA of any significant theft or loss of such substances, as follows:

The registrant shall notify the Field Division Office of the [DEA] in his area, in writing, of the theft or significant loss of any controlled substances within one business day of discovery of such loss or theft. The registrant shall also complete, and submit to the Field Division ...

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