If You Plan on Infecting Your Patient with Herpes, You Have a Duty to Warn

This is going to be awkward.

So, a court in New York has ruled that a doctor has a professional duty to warn, no matter how embarrassing the circumstances. More specifically, a psychiatrist who had a sexual affair with one of his patients has a duty to warn the patient’s spouse that the patient is now probably infected with genital herpes, since the psychiatrist was infected, and knew of this fact.

The court did not rule (also reported here) on the merits of the case, but it did rule that the husband in question has the right to bring a negligence action against this doctor. So, the plaintiff will still have to prove at trial that the doctor was infected with herpes, passed it on to the patient, who in turn passed it to her husband.
I can only imagine what that warning would have sounded like:

“Dear Sir: This is Dr. Creep, your wife’s psychiatrist. I’m just writing to let you know that she is progressing very well in her therapy. I believe that we have established a very intimate connection. We’ve established such an intimate connection, in fact, that I fully intend to have intimate relations with her at our next session. I think it will prove to be a significant breakthrough. I feel, however, that it is my duty as a professional to warn you that I have genital herpes, so there is a very good chance that your wife will pass the consequences of my ill-planned trip to Thailand on to you, unless you take the appropriate precautions.

“Very Truly Yours, Dr. Creep.

“P.S., I’d appreciate if you just kept this discussion between us. Experience has shown that the state authority responsible for licensing psychotherapists doesn’t have much of a sense of humor about these things. Thanks a bunch!”

Or something like that.

Seriously, though, one has to wonder what effect the court thought that this ruling would have. Obviously, the doctor’s behavior was abhorrent, and if the facts are proven, the husband (and perhaps the wife, as well) should be able to collect damages from him, and the doctor should lose his license.

But, assuming that this ruling is upheld on appeal and becomes binding precedent for similar cases in the future, does anyone think that doctors are actually going to warn their patients’ spouses before sleeping with their patients? Probably not. Of course, this could have the effect of at least deterring such behavior by doctors and other similarly-situation professionals in the future, if they face the prospect of having to pay damages, as well as the public ridicule that (properly) comes with such behavior.

This case also raises some interesting questions about how far the “duty to warn” extends. In this case, it’s clear that the doctor could foresee the possibility of his patient passing his STD onto her husband. But what if the patient had confided in the psychiatrist that she was certain that her husband was also having an affair? Would the doctor have a duty to track down and warn the husband’s mistress? What about any of the mistress’ other known sexual partners? Obviously, the problems associated with such line-drawing quickly become apparent.

Of course, basic common-law principles can provide some guidance. The doctor had a basic duty to warn anyone who could foreseeably be harmed by his conduct. This would obviously include the patient and, assuming the doctor knew about him, her husband. While he certainly has the potential to harm others, at some point the connections just become too attenuated to expect him to foresee. Because the border between reasonably foreseeable and not reasonably foreseeable is quite blurry, where we decide to draw the line will necessarily be a little bit arbitrary.

Of course, we have to draw arbitrary lines all the time in the law. Most people agree that age-of-consent laws are necessary. However, it’s hard to find people who can agree on exactly what the age of consent should be. Of course, you have to draw a line somewhere. If you set the age of consent at a reasonable point (say, between 16 and 18 years old), there will be some people younger than the age of consent who are mature enough to consent to sex with an older person, and some who are older than the age of consent who are not sufficiently mature. Nonetheless, the line has to be drawn somewhere.

The same is true with deciding which victims are “foreseeable” and which are not.  

This case also raises questions about imposing liability for infecting people with STDs. By now, just about everyone is aware of the risks of having unprotected sex with an unknown partner. It could very easily be argued that the doctor, at least with respect to the patient he slept with (not her husband since he presumably didn’t know about the affair) has a defense that his partner assumed the risk, or committed contributory negligence.

One the other hand, such arguments could be read as relieving the person in the best position to prevent such things – the person with the STD and is aware that he has it.

Obviously, there are no easy answers to these questions. This story, while certainly amusing (though not to those involved, I’m sure), illustrates that even the simplest “wacky legal news” story can have some very complicated legal and policy issues just below the surface.

By: Rusty Shackleford