ZARELLA, J.
The principal issue in this appeal is whether a physician who fails to advise an unaware patient of the potential driving risks associated with her underlying medical condition breaches a duty to the victim of the patient's unsafe driving because of the failure to advise. The plaintiff, John Jarmie, appeals from the judgment of the trial court in favor of the defendants, Frank Troncale, a physician and gastroenterology specialist, and Gasteroenterology Center of Connecticut, P.C., Troncale's employer. Troncale diagnosed and treated his patient, Mary Ann Ambrogio, for various liver and kidney ailments, including hepatic encephalopathy, but failed to warn her of the latent driving impairment associated with her condition. After leaving Troncale's office, Ambrogio blacked out while operating her motor vehicle and struck the plaintiff. On appeal, the plaintiff claims that the trial court, in granting the defendants' motion to strike his complaint, improperly ruled that a third party is categorically barred from bringing an action against a physician for professional negligence and that Troncale owed no duty to the plaintiff to warn Ambrogio of the driving risks associated with her medical condition. The defendants argue that the trial court properly ruled that Troncale owed no duty to the plaintiff. As an alternative ground for affirmance of the trial court's decision, the defendants also argue that the plaintiff failed to plead the requisite causal connection between Troncale's alleged deviation from the standard of care and the plaintiff's claimed injury. We affirm the judgment of the trial court.
The following relevant facts and procedural history are set forth in the trial court's memorandum of decision. "On June 20, 2008, the plaintiff ... filed a one count negligence complaint against the defendants.... The plaintiff also attached a good faith certificate, which, under General Statutes § 52-190a, is a prerequisite to filing a medical malpractice action.
"Troncale is a licensed Connecticut physician and specialist in gastroenterology
"It is generally known in Troncale's medical specialty that those suffering from hepatic encephalopathy are unable to safely operate a motor vehicle due to their impaired mental state. While operating a motor vehicle after leaving Troncale's offices on June 22, 2006, [Ambrogio] lost consciousness due to the hepatic encephalopathy and crashed into the plaintiff, causing him severe, permanent injuries. The [plaintiff alleged that his] injuries were caused by [Troncale's deviation from the accepted standard of care applicable to the treatment of Ambrogio] in that [he] failed to ... advise and warn [her] not to drive a vehicle.
"On July 24, 2008, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff failed to comply with General Statutes § 52-190a in that the written opinion supporting the good faith certificate [failed] to specify the specialty of its author, and there [was] no basis to conclude that the author is a similar health care provider to ... Troncale and, therefore, qualified to determine whether there is evidence of medical negligence.
"On August 7, 2008, the plaintiff filed his first amended complaint, attaching a substitute copy of the good faith certificate. The plaintiff also filed an objection to the defendants' motion to dismiss in which he argued that the ... motion ... should be denied because the plaintiff over-redacted the specialty and board certification of the reviewer in the initial good faith certificate. On August 13, 2008, the defendants filed a claim for apportionment under General Statutes § 52-102b against [Ambrogio], claiming that she was the proximate cause of the plaintiff's alleged injuries and damages.
"On September 2, 2008, the defendants withdrew their motion to dismiss. On November 21, 2008, the defendants filed a motion to strike the plaintiff's second amended complaint on the ground that the plaintiff's medical malpractice claim [was] legally insufficient. On December 10, 2008, the plaintiff filed an objection to the defendants' motion."
On December 31, 2008, the trial court granted the motion to strike on the grounds that the plaintiff had failed to allege a physician-patient relationship, as required under Connecticut medical malpractice law, and that Connecticut authority indicates that physicians have no common-law duty to protect third parties from injuries caused by patients. The court thus found it unnecessary to address the defendants' argument that the plaintiff had failed to plead the required causal connection between Troncale's alleged deviation from the standard of care and the claimed injury. This appeal followed.
The plaintiff first claims that the trial court improperly concluded that a third party who is not a patient is categorically barred from bringing a cause of action against a health care provider for professional negligence. The plaintiff specifically claims that this court's precedent establishes that a proper "duty" analysis requires a particularized examination of foreseeability and public policy under the relevant circumstances and that the plaintiff's attachment of a good faith certificate to the complaint does nothing to change that analysis. The defendants respond that the trial court correctly determined that the plaintiff's complaint sounded in medical malpractice and should be stricken because it failed to allege a physician-patient relationship, which is a necessary component of a medical malpractice complaint. We conclude, in light of the allegations in the plaintiff's complaint and the parties' arguments, that the trial court properly considered, as two separate issues, whether the plaintiff's complaint was legally insufficient under Connecticut's medical malpractice law and whether Troncale owed a duty to the plaintiff under common-law principles of negligence.
The following procedural background is relevant to our resolution of this claim. When the defendants filed their motion to strike the plaintiff's complaint, which they characterized as sounding in medical "malpractice," they argued that the plaintiff had failed to plead a physician-patient relationship and the required causal connection between Troncale's alleged deviation from the standard of care to the patient and the plaintiff's claimed injuries. The defendants also moved to strike the complaint on the ground that Troncale owed no duty to the plaintiff as a matter of law. The defendants thus discussed the "malpractice" and "duty" issues separately in the memorandum in support of their motion to strike.
In his memorandum in opposition to the motion, the plaintiff ignored the defendants' characterization of the complaint as sounding in medical malpractice and argued that Troncale owed him a legal duty, that the complaint properly alleged proximate cause and that there was no statutory authority prohibiting third parties from bringing an action in negligence against a health care provider. With respect to this last point, the plaintiff specifically argued that limiting medical malpractice claims against health care providers to their patients "turns the malpractice statute into a sword precluding negligence claims by third parties," a result that never was intended under the medical malpractice statutes.
In deciding the motion, the trial court rejected the plaintiff's contention that he had brought a common-law action in negligence. The court instead concluded that the complaint sounded in medical malpractice and granted the motion to strike
The parties' arguments must be understood in light of this procedural history. The plaintiff maintains that the complaint is legally sufficient because it was brought under common-law principles of negligence, to which the good faith certificate was attached as a precautionary measure to "avoid ... procedural wrangling," whereas the defendants contend that the complaint is legally insufficient because it sounds in medical malpractice. The complaint, however, does not purport to be grounded in either medical malpractice or common-law negligence. It merely describes the relevant facts and alleges that the plaintiff's injuries were caused by Troncale's "deviation from the accepted standard of care applicable to the treatment of the patient in that [he] failed to advise and warn the patient not to drive a vehicle," which was a substantial factor in causing the plaintiff's injuries. Although the plaintiff filed a good faith certificate with the complaint, and the complaint's reference to the accepted "standard of care" is consistent with the language ordinarily used in bringing a medical malpractice action, it was not until the defendants filed their motion to strike that the two sides began to characterize the complaint in different ways. Presented with this situation, the trial court decided the motion under both theories. The court initially rejected the plaintiff's position and concluded that the complaint sounded in medical malpractice, but subsequently considered the defendants' argument that Troncale owed no duty to the plaintiff because it described the notions of "duty" and "physician-patient relationship" as "intertwined" in medical malpractice actions.
The issue is not merely one of semantics. How the complaint is characterized determines the standard under which it is reviewed. Unlike the trial court, we regard the two different approaches advocated by the parties as distinct, but, given the ambiguity in the language of the complaint and the nature of the arguments, the court properly considered whether the complaint should be stricken under both theories. Consequently, we first consider whether the trial court properly ruled that the complaint was barred under Connecticut's medical malpractice law. We then consider whether Troncale owed a duty to the plaintiff under common-law principles of negligence, there being nothing in the relevant statutory authority or the case law of this state that precludes the plaintiff from bringing an action against the defendants on negligence grounds. See, e.g., Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003) (considering whether health care provider owed duty to third party to prevent injuries caused by fainting while third party was observing medical procedure performed on her sister); Fraser v. United States, 236 Conn. 625, 626, 674 A.2d 811 (1996) (considering whether psychotherapist owed duty to third party harmed by patient to control and prevent patient from causing harm).
Turning first to Connecticut's medical malpractice law, General Statutes § 52-190a provides in relevant part: "(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987,
Pursuant to this statute, which was enacted as part of the Tort Reform Act of 1986; see Public Acts 1986, No. 86-338, § 12; a cause of action alleging medical malpractice must be brought by a patient against a health care provider because the language of the statute specifically provides that the alleged negligence must have occurred "in the care or treatment of the claimant...." General Statutes § 52-190a (a). As we explained in Gold v. Greenwich Hospital Assn., 262 Conn. 248, 811 A.2d 1266 (2002), "[t]he classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice ... [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.... Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ... the failure to exercise requisite medical skill.... From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.... [T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 254-55, 811 A.2d 1266; accord Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001); see also Dias v. Grady, 292 Conn. 350, 357,
Guided by these principles, we agree with the trial court that, insofar as the defendants characterize the plaintiff's complaint as sounding in medical malpractice, it is legally insufficient because it contains no allegations that the plaintiff and Troncale had a physician-patient relationship as required under Connecticut's medical malpractice law. Accordingly, we conclude that the trial court properly granted the defendants' motion to strike on that ground.
The plaintiff next claims that the trial court improperly granted the motion to strike on the ground that Troncale did not owe him a specific and limited common-law duty to inform Ambrogio of her potential inability to drive safely because of her impaired medical condition. The plaintiff claims that the duty to inform is already owed to the patient and that extending the duty to a third party victim is fully consistent with Connecticut law, is good public policy and has been adopted by other jurisdictions. The defendants respond that, under Connecticut law, physicians owe no duty to unidentifiable members of the public and that a duty analysis supports the conclusion that Troncale owed no duty to the plaintiff. We agree with the defendants.
"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 determined 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
We conclude as a matter of law that Troncale owed no duty to the plaintiff in this case because Connecticut precedent does not support it, the plaintiff was an unidentifiable victim, public policy considerations counsel against it, and there is no consensus among courts in other jurisdictions, which have considered the issue only rarely. We discuss each of these reasons in turn.
It is useful to view Connecticut common-law rules defining the duty of health care providers in conjunction with § 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. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., pp. 212-26,268-83,320-21; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1986 Sess., pp. 1968-93; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7,1986 Sess., pp. 2319-27; Insurance and Real Estate Committee Report on Health Care Liability Insurance in Compliance with Special Act 85-85, concerning Substitute House Bill No. 5110, entitled `An Act Establishing a Task Force on Health Care Liability Insurance.'" Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 47, 848 A.2d 418 (2004) (Borden, J., concurring and dissenting). Thus, a principal goal of § 52-190a, and of tort reform generally, was to limit the potential liability of health care providers. See 1 D. Louiselle & H. Williams, Medical Malpractice § 8.01[3][b] (2012) ("The tort reform movement of the 1980s led some states to attempt to codify much of the law of malpractice in a way that limited the potential liability of a health care provider. These efforts ... resulted in laws that addressed areas historically developed by the courts even in code states.").
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." Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990); accord Fraser v. United States, supra, 236 Conn. at 632, 674 A.2d 811; see 2 Restatement (Second), Torts § 315, p. 122 (1965). Thus, physicians owe an ordinary
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., supra, 264 Conn. at 477-78, 823 A.2d 1202; 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 dangerous. See Fraser v. United States, supra, 236 Conn. at 627-30, 674 A.2d 811. 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., at 634, 674 A.2d 811. 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 in the present case because, with one limited exception that does not apply; see part III B of this opinion; we repeatedly have declined, in a variety of situations, to extend the duty of health care providers to persons who are not their patients.
We next consider whether the duty of care should be extended under a classic duty analysis. This requires us first to determine whether the alleged harm was foreseeable. See, e.g., Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. at 593-94, 945 A.2d 388.
The plaintiff claims that the complaint sufficiently alleges that the harm he suffered was foreseeable. The complaint specifically
As a general matter, this court has stated: "It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm. In defining the limits of duty, we have recognized that [w]hat is relevant ... is the ... attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand.... Articulated another way, the attenuation between the plaintiffs' harm and the [defendant's] conduct is nothing more than a determination of whether the harm was a reasonably foreseeable consequence of the [defendant's] conduct. It is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable.... Due care is always predicated on the existing circumstances." (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 574-75, 717 A.2d 215 (1998).
Most Connecticut negligence cases in which we have considered the duty of health care providers have involved identifiable victims. See, e.g., Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. at 479, 823 A.2d 1202; Maloney v. Conroy, supra, 208 Conn. at 397, 400, 545 A.2d 1059. In Fraser v. United States, supra, 236 Conn. 625, 674 A.2d 811, however, in which the victim was not identifiable; id., at 633, 674 A.2d 811; we concluded that a psychotherapist owed no duty to the victim because "our decisions defining negligence do not impose a duty to those who are not identifiable victims" and "in related areas of our common law we have concluded that there is no duty except to identifiable persons...." Id., at 632, 674 A.2d 811. We specifically noted that, in Kaminski v. Fairfield, supra, 216 Conn. 29, 578 A.2d 1048, the only previous case in which we had considered the type of relationships that "might trigger a special duty of care to protect third parties from personal harm," our determination that "the injured third party had not established a duty to protect him from physical harm rested in part on the fact that he ... was not a specifically identifiable victim." (Internal quotation marks omitted.) Fraser v. United States, supra, at 633, 674 A.2d 811. We further noted that our holding in Kaminski had been based on the rule of law articulated in Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 431, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). See Fraser v. United States, supra,
Although many harms, in hindsight, may be foreseeable; see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 386, 650 A.2d 153 (1994); the foreseeability test as applied by this court in the context of health care providers has, until now, required an identifiable victim because we have deemed the effect of a physician's conduct on third parties as too attenuated to extend liability beyond the patient. No Connecticut case since Fraser has changed that analysis. See Jacoby v. Brinckerhoff, supra, 250 Conn. at 96, 735 A.2d 347 (recognizing conclusion in Fraser that scope of psychotherapist's duty does not extend beyond therapeutic relationship when there is no imminent risk of serious personal injury and no identifiable victim); Zamstein v. Marvasti, supra, 240 Conn. at 562, 692 A.2d 781 (recognizing conclusion in Fraser that liability should not be imposed on health care providers for harm "to unidentifiable victims or unidentifiable classes of victims" when patient has "no history of dangerous conduct or articulated threats of dangerous behavior" [internal quotation marks omitted]).
"Related areas of Connecticut negligence law [also] provide support for the proposition that proof that the victim was an identifiable target is ordinarily an essential element of an action in negligence. [Thus] [a]s a common law matter, to impose liability on a municipal employee who presumptively enjoys immunity in the performance of discretionary governmental acts, a plaintiff must show the existence of circumstances that make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.... Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226 (1994) ... Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994); Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979)." (Citation omitted; internal quotation marks omitted.) Fraser v. United States, supra, 236 Conn. at 634, 674 A.2d 811.
In the present case, we conclude that, even if it was foreseeable that Ambrogio might have caused a motor vehicle accident due to her impaired condition, the plaintiff was not an identifiable victim, nor does he belong to an identifiable class of victims, because the potential victims of Troncale's alleged negligence included any random pedestrian, driver, vehicular passenger or other person who happened to come in close proximity to a motor vehicle operated by Ambrogio following her diagnosis. Moreover, "any" person cannot be construed to mean an "identifiable" victim or "class" of identifiable victims, as this court has used those terms in prior cases involving health care providers, because it would be impossible to know who such persons might be before an accident occurs. Accordingly, if we decide to abandon this court's former approach and to extend a health care provider's duty to possibly foreseeable victims who are not identifiable, we must do so for reasons of
The plaintiff argues that several key policy considerations favor imposing on health care providers a limited duty to third persons to warn an unaware patient of a potential driving impairment. These include that it would reduce the harm caused by medically impaired drivers, would be highly efficient because a physician is the best cost-avoider and already has a duty to warn the patient, and would have the positive effect of eliminating inconsistent outcomes. The plaintiff further argues that the proposed duty would not implicate the policy concerns raised by more expansive third party duties such as the duty to protect, control or warn third persons because it would not impinge on the physician-patient relationship or on a physician's professional obligation to exercise independent medical judgment in treating a patient. The defendants respond that public policy considerations disfavor imposing such a duty because physicians do not expect to be held accountable to members of the general public for decisions regarding patient treatment, optimal treatment of patients is frustrated by extending a physician's liability to unidentifiable third persons and extending liability would lead to increased litigation and higher health care costs. We agree with the defendants.
We first emphasize that, "[w]hile it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the rippling of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.... [Accordingly] [t]he final step in the duty inquiry ... is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Citation omitted; internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 406, 696 A.2d 332 (1997); see also Maloney v. Conroy, supra, 208 Conn. at 400-404, 545 A.2d 1059 (looking beyond foreseeability and determining that public policy dictates that no duty of care was owed by defendant).
"[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
With respect to the compensation of innocent parties, the present situation is not one in which an injured party necessarily receives no compensation, as the plaintiff suggests. Injured parties may be covered by their own motor vehicle and health insurance policies. Moreover, accidents caused by persons with latent driving impairments may not always be due to the driver's medical condition but, rather, may be due to other factors indicative of negligence, such as speeding or driving while intoxicated. In such cases, injured parties may bring an action against the driver and seek compensation through the driver's insurance policy. We also disagree with the plaintiff that a failure to extend the duty to injured persons would lead to inconsistent outcomes merely because a patient could file a lawsuit against a negligent health care provider and receive a potentially greater recovery than an injured victim who could not file a similar lawsuit. Any conclusion regarding inconsistent outcomes must involve a comparison between two parties that stand in the same relationship to another party, and patients and injured third persons do not stand in the same relationship to health care providers. We thus conclude that, to the extent an injured party may not be covered by a motor vehicle or health insurance policy, the financial cost to victims resulting from such accidents 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, even if, in some exceptional cases, a single victim may not be "adequately compensated through [his] motor vehicle and health insurance" policies, as the dissent maintains. See part III C 2 a and b of this opinion.
Turning next to the issue of distributing loss, we agree with the plaintiff that, if a physician warns a patient before an accident occurs, the proposed duty would serve the goal of shifting the injured party's loss to the driver, who is the most responsible party, because patients who continue to drive unsafely after being warned may be deemed legally negligent if they subsequently cause an accident. A physician who does not warn a patient before an accident occurs, however, could be unfairly subject to liability. The plaintiff assumes that a patient who has been warned will discontinue driving without recognizing that not all patients will necessarily follow their physician's advice. Accordingly, because all health care providers cannot be presumed to control their patient's lifestyle decisions, such as whether or not to drive, it would not be fair to hold an allegedly negligent health care provider responsible for injuries caused by a patient's unsafe driving without knowing whether the patient would have heeded a prior warning.
With respect to the deterrence of wrongful conduct, the proximate cause of a driving accident is the conduct of the driver. If, as the plaintiff argues, the proposed duty is the same duty owed by
Finally, expanding the duty of health care providers would create a significant risk of affecting conduct in ways that are undesirable because it would interfere with the physician-patient relationship and give rise to increased litigation, with all of its attendant costs. See part III C 2 a and b of this opinion. The proposed duty also would conflict with the public policy implicit in General Statutes § 14-46 of shielding health care providers from liability to members of the general public by providing that health care providers "may" report any persons diagnosed with "any chronic health problem which in [the physician's] judgment will significantly affect the person's ability to safely operate a motor vehicle ... for the information of the commissioner [of motor vehicles] in enforcing state motor vehicle laws ... [and] for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this state."
We have articulated four specific factors to be considered in determining the extent of a legal duty as a matter of public policy. These are: "(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." Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. at 480, 823 A.2d 1202; accord Perodeau v. Hartford, 259 Conn. 729, 756-57, 792 A.2d 752 (2002); Jaworski
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. As previously discussed, § 14-46
Correspondingly, although a person injured in a motor vehicle accident would not expect to recover from a nonnegligent driver,
We next consider whether the proposed duty would impermissibly interfere with the physician-patient relationship and discourage patients from seeking treatment and care from their health care providers. We conclude that, when the accepted standard of care requires a health care provider to advise or warn a patient of the risks of driving due to the patient's underlying medical condition, imposing an additional duty on the health care provider to the victim of the patient's unsafe driving would be problematic, at best, because it 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.
We begin with the premise that, "[u]nlike most duties, the physician's duty to the patient is explicitly relational: physicians owe a duty of care to patients." (Emphasis in original.) 1 Restatement (Third), supra, § 41(h), p. 790. Mindful of this principle, we have recognized on more than one occasion the physician's duty of "undivided loyalty" to the patient; Jacoby v. Brinckerhoff, supra, 250 Conn. at 97, 735 A.2d 347; accord Mack v. Saars, 150 Conn. 290, 312, 188 A.2d 863 (1963) (Shea, J., dissenting); Lieberman v. Board of Examiners in Optometry, 130 Conn. 344, 350, 34 A.2d 213 (1943); and the patient's corresponding loyalty, trust and dependence on the professional opinions and advice of the physician. Blanchette v. Barrett, 229 Conn. 256, 266, 640 A.2d 74 (1994), overruled on other grounds by Grey v. Stamford Health System, Inc., 282 Conn. 745, 924 A.2d 831 (2007). "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." (Emphasis added.) Murillo v. Seymour Ambulance Assn., Inc., supra, 264 Conn. at 481, 823 A.2d 1202. "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." Maloney v. Conroy, supra, 208 Conn. at 403, 545 A.2d 1059. Accordingly,
Extending a health care provider's duty also would threaten the confidentiality inherent in the physician-patient 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...."
Finally, extending a health care provider's duty to third persons would affect the decisions of treating physicians and, in some cases, allow strangers in their capacity as jurors and medical experts to substitute their judgment for that of physicians and patients, who are empowered to bring their own lawsuits, if deemed necessary, to determine whether a patient should have been warned. We can think of no more egregious interference with the physician-patient relationship than this.
Contrary to what the plaintiff and the dissent apparently believe, the proposed duty is not the same as a physician's existing duty to warn a patient of a latent driving impairment. A "duty to act" has been defined as "[a] duty to take some action to prevent harm to another...." Black's Law Dictionary (9th Ed. 2009).
The reasons for this tug of war are not hard to understand and relate to the difficulty in determining exactly when a patient's medical condition requires a warning and the inherent ambiguity in the standard of care. With respect to medical conditions or diseases that may create driving risks, most diseases do not appear suddenly, in full blown form, nor is a diagnosis necessarily possible on the basis of a single early symptom. Diseases naturally progress over a period of time, and, as they do, more symptoms appear that may cause various types and degrees of incapacitation. The standard of care described in the plaintiff's complaint and the medical expert's report, however, merely requires that a physician advise and warn the patient of the risks of driving when there is a latent driving impairment. There is nothing in this standard that mandates when the patient must be advised or warned. The ambiguity in the standard of care and the slow evolution of most diseases, which may be barely detectable in their early stages, are why a physician's differing obligations to patients and potential victims may require that the warning be issued at different times.
Because a physician's only obligation to potential victims would be to warn the patient, the public would expect and demand that the physician issue the warning at the earliest possible time, such as when the disease is initially diagnosed or, at the very least, before an accident occurs. In contrast, a physician's obligation to the patient is not limited to the warning but is accompanied by a second, overarching obligation
For example, a health care provider may decide that a patient is not psychologically or emotionally prepared for a complete explanation and discussion of a disease and its potential effects at the time of the initial diagnosis, preferring instead to schedule a separate appointment when more time is available to answer questions and allay the patient's concerns. There also may be occasions when a patient with a progressive and potentially disabling disease, such as high blood pressure, multiple sclerosis, Parkinson's disease, mental illness or cancer, has not experienced and reported symptoms such as blackouts or severe physical or mental impairments that would render driving unsafe. In these circumstances, the health care provider, in his professional judgment, might not deem it necessary to warn the patient regarding the risks of driving. When physicians conclude for such reasons that patients should not be warned at the time of the diagnosis or before an accident occurs, their obligations to patients and potential victims necessarily will conflict.
The consequences of this conflict for decisions regarding patient care are not insignificant. A physician whose attention is diverted from the patient to the effects of his advice on unknown persons who could be harmed by the patient's future conduct "may, understandably, become less concerned about the particular requirements of any given patient, and more concerned with protecting himself or herself from lawsuits by the potentially vast number of person[s] who will interact with and may fall victim to that patient's conduct outside of the treatment setting." Coombes v. Florio, supra, 450 Mass. at 211, 877 N.E.2d 567 (Cordy, J., dissenting). In other words, a physician's desire to avoid potential lawsuits may result in far more restrictive advice than necessary for the patient's well-being. In a worst case scenario, the patient simply would ignore or reject an early warning regarding potential driving risks as inapplicable and untimely. We therefore conclude that it cannot be considered good public policy to encourage health care providers to cast aside their preeminent duty of undivided loyalty to the patient and to render advice that would unnecessarily restrict or eliminate a life activity that contributes to the patient's well-being.
Furthermore, health care providers who owe a duty to potential victims of a patient's unsafe driving would be required to weigh and balance many new and unfamiliar factors in deciding how and when to advise their patients. Thus, some health care providers might find themselves in the uncomfortable position of wondering whether the disclosure to a patient of a potential driving impairment, accompanied by advice that the patient need not stop driving because the condition is not yet disabling, would be deemed inadequate in a court of law. The purpose of a warning also might be diluted if a health care provider
By far the most egregious interference with the physician-patient relationship, however, would be in the form of lawsuits brought against health care providers for breach of the duty that the plaintiff urges in this case. The question of whether a physician reasonably failed to warn a patient would then be placed in the hands of jurors and medical experts who have no knowledge of the physician, the patient or their ongoing relationship. Moreover, an action brought by a third party differs from an action brought by a patient because the patient voluntarily exposes the relationship to public scrutiny based on a belief, founded on a complete understanding of the relationship, that the physician has deviated from the standard of care. In contrast, a third party who brings an action without the patient's permission has no knowledge of the physician-patient relationship. Interference of this kind, which would open private communications between physicians and patients to potentially endless investigation and lead to interminable arguments regarding the patient's symptoms and the physician's treatment decisions, is simply not compatible with the privilege granted to physician-patient relationships by the legislature and the common-law duties of loyalty and confidentiality owed to patients by their health care providers.
We have reached the same conclusion when third parties have attempted to expand the duty of other professionals beyond the privileged relationship. In Krawczyk v. Stingle, 208 Conn. 239, 246-47, 543 A.2d 733 (1988), we disallowed a claim by the beneficiaries of a decedent against the decedent's attorney for the attorney's failure to arrange for the timely execution of certain estate planning documents before the decedent died. We explained that the "[i]mposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney's primary responsibility to ensure that the proposed estate plan effectuates the client's wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen." Id. For similar reasons, extending the duty of physicians, as the plaintiff suggests, would impermissibly interfere with the physician-patient relationship.
The proposed duty also would result in increased litigation because it would open the door to an entirely new category of claims against health care providers, not only in the present context, but in the context of other treatment decisions that
In addition, health care providers would be forced to spend valuable time away from their patients so that they could respond to interrogatories, attend depositions and testify at trial. Litigiously inclined victims of motor vehicle accidents also could use their newly granted power to conduct time-consuming fishing expeditions for the purpose of discovering medical information that could be used in bringing claims against health care providers to supplement the coverage provided under their own insurance policies. The prospect of increased litigation and its attendant costs in terms of time and money thus militates against expanding the duty of health care providers in the present circumstances.
We finally consider the law of other jurisdictions. The plaintiff claims that, of the states that have decided the issue, a clear majority supports the proposed duty. The defendants respond that an analysis of foreign authority does not support the proposed duty. We agree with the defendants.
To the extent the plaintiff argues that "a clear majority of [the] decisions support the rule" that a health care provider owes a duty to the victim of a patient's unsafe driving to warn the patient when "a patient's medical condition or medication renders [the patient] unable to drive safely"; (emphasis added); he mischaracterizes the proposed rule and relies on inapposite law. The issue before this court is whether health care providers owe a duty to third parties arising from a latent driving impairment caused by the patient's under lying medical condition,
The plaintiff's reliance on case law developed in an entirely different context is
The only two cases cited by the plaintiff with any possible relevance in the present context are Duvall v. Goldin, 139 Mich.App. 342, 345-46, 352, 362 N.W.2d 275 (1984) (physician owed duty to person injured in motor vehicle accident to instruct epileptic patient not to operate motor vehicle after physician withdrew prescription for antiepileptic medication), and Myers v. Quesenberry, 144 Cal.App.3d 888, 890, 894, 193 Cal.Rptr. 733 (1983) (physicians owed duty to person injured in motor vehicle accident to warn patient of driving impairment arising from gestational diabetic condition). In each of those cases, however, the court limited the physician's duty to the narrow facts before it.
As the court in Duvall explained, "[g]iven the nature of the condition involved ... epileptic seizures, and assuming as we must the truth of [the] plaintiffs' allegations, we are of the opinion that it is foreseeable that a doctor's failure to diagnose or properly treat an epileptic condition may create a risk of harm to a third party.... Here, one of the alleged breaches of duty involves the defendant's failure to inform his patient not to operate a motor vehicle. The likelihood of injury to a third party due to an automobile accident arising from that breach is not so rare or unusual an occurrence as to be considered unforeseeable....
"However, our decision in this regard is limited to the narrow facts set forth in [the] case. We decline to find a duty in every instance involving a physician, his patient and an unidentifiable third party. We do not intend to make physicians highway accident insurers." Duvall v. Goldin, supra, 139 Mich.App. at 352, 362 N.W.2d 275.
The court in Myers likewise limited its holding to the specific facts in question. In that case, two physicians began treating the patient for gestational diabetes several months before the accident. See Myers v. Quesenberry, supra, 144 Cal. App.3d at 890, 193 Cal.Rptr. 733. The physicians knew that the patient's condition had seriously affected her previous pregnancies. Id. Approximately three months later, after they had discharged her from the hospital with her diabetes "unstabilized," they examined her during a scheduled appointment and, "[h]earing no fetal heart tones," asked her to return in one week for further examination. Id. Upon her return, the physicians determined that the fetus had died. Id. The patient became emotionally upset, and the physicians advised her to drive immediately to the hospital for laboratory tests. Id. During the drive, the patient lost control of her vehicle due to a diabetic attack and struck the plaintiff as he was standing by the side of the road. Id., at 890-91, 193 Cal.Rptr. 733. On these facts, the court held that the plaintiff had stated a cause of action against the physicians for negligently failing to warn the patient against driving
The defendants also rely on two cases in which medication was not a factor in causing a patient to lose control of a motor vehicle. In those cases, however, one of which also involved a patient with a seizure disorder, the court reached a different conclusion. In Schmidt v. Mahoney, 659 N.W.2d 552, 553-54 (Iowa 2003), a patient had a seizure while driving, which caused her to lose control of her motor vehicle and to injure the plaintiff. Although her treating physician knew that she had suffered from a seizure disorder since early infancy and had lost control of her motor vehicle on other occasions because of oncoming seizures, he advised her that it would be safe to drive. Id., at 553. Nevertheless, the Iowa Supreme Court declined to recognize a duty by the physician to the injured plaintiff for policy reasons, explaining that "it is highly likely that a consequence of recognizing liability to members of the general public on the facts of this case will be that physicians treating patients with seizure disorders will become reluctant to allow them to drive or engage in any other activity in which a seizure could possibly harm a third party. In order to curtail liability, physicians may become prone to make overly restrictive recommendations concerning the activities of their patients and will exercise their role as reporters to the department of transportation in an inflexible manner not in their patient's best interest. We are unable to distinguish, on public-policy grounds, the potential for disrupting the physician-patient relationship that would arise from recognizing liability in [this] case from the potential for damaging that relationship acknowledged in [prior cases recognizing the duty of medical providers]." Id., at 555.
Similarly, in Flynn v. Houston Emergicare, Inc., 869 S.W.2d 403, 404 (Tex.App. 1993), a patient who had gone to a hospital emergency department for treatment of chest pain several hours after using cocaine was discharged without a warning from the physician not to drive. On the way home, the patient had a seizure that was related to his cocaine use and crashed into the back of the plaintiff's vehicle. See id., at 404, 406. The court concluded that, because there was no allegation or evidence that the physician did anything to create the impairment that ultimately led to the accident and resulted in the plaintiff's injury, he did not owe the plaintiff a duty to warn the patient not to drive. Id., at 406. The court determined that it was the ingestion of cocaine that had caused the impairment that led to the accident and not any affirmative act of the physician. Id. Accordingly, the physician owed no duty to the public to warn the patient not to drive following the patient's ingestion of cocaine. See id.
As the foregoing cases suggest, there is no clear trend in the law of other jurisdictions. We thus find no convincing support from our sister states for either party's view and return for guidance to statutory authority and well established common-law principles developed in our own jurisdiction.
In view of all of the relevant factors, we decline to expand the duty of health care providers to unidentifiable third persons for reasons of public policy. We also decline to expand the duty because, given its potential impact on the physician-patient relationship, we deem the legislature rather than the courts the proper forum for resolving this issue, as it has done in similar situations.
We are particularly mindful of the legislature's deliberate expansion of the common-law liability of purveyors of alcoholic
"In Connecticut, as far back as 1872, it came to be felt that the foregoing common-law rule was to some extent overly harsh and should be modified by statute. Such statutes, which were enacted in numerous other states, came to be known as civil damage or dram shop acts.... Connecticut's first such statute is found in § 8 of chapter 99 of the Public Acts of 1872, and its enactment indicated a knowledge, by the General Assembly, of the foregoing common-law rule. The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for any damage or injury to any other person, or to the property of another done by the intoxicated person in consequence of his intoxication. Thus, this act, in situations [in which] it was applicable, displaced the common-law rule that the proximate cause of intoxication was not the furnishing of the liquor but its consumption.... In subsequent amendments to the act, the legislature expanded liability by including sales by the purveyor's agents and by eliminating the requirement of proof of a causal connection between the selling of the alcoholic liquor and the intoxication that caused the injury." (Citations omitted; internal quotation marks omitted.) Id., at 322-23, 813 A.2d 1003. "The act, therefore, modified the common-law rule." Id., at 323, 813 A.2d 1003.
The legislature expanded the liability of the purveyors of alcoholic beverages because of the inability of the common-law rule to address a matter of general public concern, namely, the consequences to persons and property flowing from the objectionable behavior of intoxicated customers to whom liquor had been sold.
Although we have recognized that a common-law rule may be "subject to both legislative and judicial modification"; (internal quotation marks omitted) id., at 323, 813 A.2d 1003; we deem the reluctance in the common law to extend the duty of health care providers to nonpatients, the legislative policy evinced in § 14-46 of shielding health care providers from liability to the general public for injuries caused by the effect of serious, chronic health conditions on a patient's driving ability, and the purpose of § 52-190a and tort reform of limiting the potential liability and medical malpractice insurance rates of health care providers as strong reasons for leaving the issue of extending a health care provider's duty to legislative rather than judicial modification. Accordingly, we decline to adopt the rule that the plaintiff proposes and conclude that the trial court properly granted the defendants' motion to strike on the ground that Troncale owed no duty to the plaintiff to advise or warn Ambrogio of the latent driving impairment associated with her medical condition.
The judgment is affirmed.
In this opinion ROGERS, C.J., and NORCOTT, PALMER and McLACHLAN, Js., concurred.
EVELEIGH, J., with whom HARPER, J., joins, dissenting.
I respectfully dissent. I disagree with the majority's conclusion that the complaint of the plaintiff, John Jarmie, fails to state a cause of action for negligence in this case involving a physician's duty to warn his patient of potential driving risks associated with her underlying medical condition "because Connecticut precedent does not support it, the plaintiff was an unidentifiable victim, public policy considerations counsel against it, and there is no consensus among courts in other jurisdictions, which have considered the issue only rarely." Instead, I would conclude that the trial court improperly granted the motion to strike the plaintiff's complaint filed by the defendants, Frank Troncale, a physician, and his employer, Gastroenterology Center of Connecticut, P.C., because the plaintiff's complaint stated a cause of action for negligence. Specifically, I would conclude that, under the facts of this case, Troncale owed a duty to his patient, Mary Ann Ambrogio, to warn her of the potential risks associated with her underlying medical condition as they related to routine activities such as driving. Furthermore, I would conclude that Troncale's breach of the duty to Ambrogio can, in turn, constitute a breach of duty to an injured third party — in the present case, the plaintiff, who was struck by Ambrogio's
At the outset, I note the majority's assertion that "[t]he principal issue in this appeal is whether a physician who fails to advise an unaware patient of the potential driving risks associated with her underlying medical condition breaches a duty to the victim of the patient's unsafe driving because of the failure to advise." First, I emphasize that the duty owed to the plaintiff, as alleged, is the same duty as that owed to Ambrogio. The plaintiff does not claim, and I would not conclude, that Troncale had a duty to warn either a specific class, or the public in general, about Ambrogio's medical condition that may cause blackouts. Instead, the plaintiff claims only that Troncale had a duty to warn Ambrogio of the possible effect of her medical condition. Second, the plaintiff does not claim that Troncale either had a duty to control Ambrogio — take her car keys away — or to warn the plaintiff specifically. Third, the plaintiff bases his claim on Troncale's duty of care to Ambrogio, therefore, recognizing the plaintiff's claim is not inconsistent or detrimental to the physician-patient relationship. Fourth, the plaintiff does not challenge Troncale's treatment decisions, only Troncale's already existing duty to inform Ambrogio regarding the consequences of her medical condition. It is on this narrow and limited basis that I dissent.
I begin by noting that I agree with the underlying facts and procedural history recited by the majority. I will provide additional facts where necessary. Further, I also agree with the majority that "[t]he standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).
First, Connecticut precedent supports recognizing a cause of action by the plaintiff against Troncale under the facts of the present case. Specifically, this court has recognized that there are circumstances in which a health care professional does owe a duty to a nonpatient. Thus, in Fraser v. United States, 236 Conn. 625, 633-35, 674 A.2d 811 (1996), we noted with approval the principle first established in Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 441, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), that a psychotherapist whose outpatient threatens to commit acts of violence against others owes a duty of care to the potential victims, despite the absence of privity. Moreover, even in cases where this court has held that a physician does not owe a duty to a nonpatient, it has centered its analysis on the fact that the injuries were not foreseeable and that public policy did not support a duty under the facts of those cases. See Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003) (sister of patient fainted while observing medical procedures and filed action against treating emergency medical technician and nurse); Jacoby v. Brinckerhoff, 250 Conn. 86, 95-96, 735 A.2d 347 (1999) (plaintiff claimed psychiatrist's negligence in treating ex-wife caused divorce); Zamstein v. Marvasti, 240 Conn. 549, 551, 692 A.2d 781 (1997) (plaintiff claimed psychiatrist's negligence in evaluating his children caused false charges of sexual abuse to be brought against him); Maloney v. Conroy, 208 Conn. 392, 399, 545 A.2d 1059 (1988) (daughter of patient
Second, unlike the majority, I would conclude that, under the limited facts of the present case, the injury to the plaintiff was foreseeable and that public policy supports recognizing a duty to a nonpatient in the circumstances present herein. This approach is consistent with the modern general rule requiring the issue of whether a physician owes a duty to a nonpatient to be determined on the specific facts of each individual case. See 1 D. Dobbs & P. Hayden, The Law of Torts (Sup.2010) § 241D, p. 237 ("[w]hen a physician's patient causes injury to a third person ... courts have generally recognized that, given appropriate facts, the physician owes a duty to the nonpatient [despite a lack of privity]"). Indeed, "[l]iability [to a nonpatient] has ... been found when the doctor was aware of a physical condition of which the patient was unaware, but which was likely to result in an accident." 1 D. Louisell & H. Williams, Medical Malpractice (2012) § 8.03[5], p. 8-62.3.
The complaint in the present case alleges the following: (1) Troncale diagnosed Ambrogio as having a certain medical condition, hepatic encephalopathy; (2) judged by the standards of his professional specialty, gastroenterology, Troncale knew or should have known that Ambrogio's condition rendered her unable to drive a car safely; (3) nevertheless, Troncale failed to advise or to warn Ambrogio not to drive. Taking these facts as true, as we must in considering an appeal from the grant of a motion to strike, I would conclude, as have numerous courts from other jurisdictions, that these facts establish that a prudent physician in Troncale's position would have foreseen harm to a patient because a car accident of some kind was a foreseeable result if his patient continued driving in her impaired condition. See Myers v. Quesenberry, 144 Cal.App.3d 888, 892, 193 Cal.Rptr. 733 (1983); Cram v. Howell, 680 N.E.2d 1096, 1098 (Ind.1997); Duvall v. Goldin, 139 Mich.App. 342, 352, 362 N.W.2d 275 (1985) (all concluding, under similar facts, that harm to nonpatient victim was foreseeable to physician). There is certainly no dispute that, if Ambrogio had sustained injuries due to Troncale's failure to warn her not to drive, her damages would have been foreseeable as a matter of law. Because the plaintiff's injuries occurred in the same manner in which Ambrogio's foreseeable injuries would have occurred, it is, therefore, inconsistent to conclude that the plaintiff's injuries were not foreseeable. An out of control car, by its very nature, carries a high degree of risk of injury, not only to those in the car, but also to other users of the roadways, including pedestrians, such as the plaintiff. Indeed, the car accident that caused the plaintiff's injuries is not merely one of many possible foreseeable eventualities that could result from the breach of a duty to use care; a car accident is exactly the harm that should have been foreseen.
In view of the fact that I conclude that the accident and consequent injuries to the plaintiff were foreseeable, I next examine
There are numerous policy considerations that support the imposition of a duty under the circumstances presented in this case. First, the proposed duty serves an important public interest. Disclosing latent driving impairments to motorists is likely to reduce the incidence of preventable injuries to persons and property. As the Hawaii Supreme Court has stated, "[i]t appears obvious that warning a patient not to drive because his or her driving ability may be impaired ... could potentially prevent significant harm to third parties. There is little [social] utility in failing to warn patients about the effects of a drug or condition that are known to the physician but are likely to be unknown to the patient." (Internal quotation marks omitted.) McKenzie v. Hawaii Permanente Medical Group, Inc., 98 Haw. 296, 306, 47 P.3d 1209 (2002), quoting Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex.1998). Further, imposing a duty to warn patients under the limited facts of the present case is likely to be effective, because such a duty is carefully calibrated to address the specific problem of accidents caused by drivers who are unaware of their driving impairments. The purpose of the duty is to ensure that crucial knowledge possessed only by a patient's physician is transferred to the patient.
The majority asserts that "extending a physician's duty to third persons does not necessarily mean that a patient with a latent driving impairment would be more likely to discontinue driving. Even if Troncale had advised Ambrogio at the time of her diagnosis that she should no longer drive, she might have continued driving and caused an accident regardless of the warning." Although I agree with the majority that Ambrogio may have driven and caused an accident even if Troncale had warned her of the dangers of her driving, this hypothetical does not represent the facts of the present case and does not militate against recognizing the plaintiff's claims against Troncale. To the contrary, if Troncale had warned Ambrogio, and Ambrogio had driven despite those warnings, then Troncale would not be negligent for failing to warn his patient. Instead, Ambrogio would be negligent for having driven despite warnings from Troncale. Thus, under those circumstances, Ambrogio would be liable and Troncale would not.
Second, the proposed duty, in my view, is the most efficient way to reduce the occurrence of the harm at issue. In fact, it may be the only way to reduce such harm. Where a patient does not know and cannot reasonably be expected to know that her medical condition renders her unable to drive safely, the patient's physician is in the best position to prevent the harm. The action necessary to discharge the duty is also very simple and virtually costless: the physician must take some additional time to inform his patient of the driving impairment. It would, therefore, seem logical for the law to require that the physician initially bear the risk that harm may result if the critical information known only to the physician is not duly conveyed to the patient. The patient who is warned can then take appropriate steps to protect both herself and members
Third, recognizing the plaintiff's claim would prevent a potentially unfair and irrational result. Under the majority's conclusion, a patient who is injured in a car accident caused by that patient's driving impairment may file an action against the physician who failed to inform her of the impairment, while a nonpatient who is injured in that accident may lack a comparable remedy. "[I]n many of these cases, the physician has breached a duty to the patient by failing to warn the patient of dangers, and the physician plainly would be subject to liability to the patient if the patient suffered harm." 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 7, reporters' note to comment (e), p. 91 (2010). Indeed, if the nonpatient could not prove negligence against the patient driver — i.e., if the driver had not previously had blackouts and was not advised not to operate an automobile — he may not recover for his injuries. See Caron v. Guiliano, 26 Conn.Sup. 44, 45-46, 211 A.2d 705 (1965) (sustaining verdict for defendant driver because evidence showed that he involuntarily lost control of car due to unforeseen physical condition). "Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning of his condition." (Internal quotation marks omitted.) Id., at 45, 211 A.2d 705, quoting 8 Am.Jur.2d 245, Automobiles and Highway Traffic § 693 n. 17. Under the majority's view, a person injured in a car accident caused by the driver's latent medical driving impairment potentially lacks any meaningful legal remedy. Moreover, by allowing the third party to file an action against the physician directly, we avoid imposing unnecessary costs on the uninjured patient. To the contrary, under the majority's view, the third party would file an action against the patient, and that patient will have to hire her own attorney and an expert in order to bring an action against the physician. It is highly unlikely that the insurance company attorney defending the case would agree to represent the patient in an action against the physician. Therefore, the patient will be forced to incur the expense of both another attorney and an expert physician, in order to bring an action against her physician. In all likelihood, the patient, even if she were successful in the action, would not recover all of her out-of-pocket expenses, especially for the costs of the attorney. I consider this result to be untenable. In my view, the fairer result is a direct action against the physician for failure to warn. The patient should not have to bear unnecessary expenses as a result of the physician's negligence.
Although we have not had the occasion to rule on this precise issue, there are numerous decisions from our sister states that also support the imposition of such a duty to a third party. See Hoehn v. United States, 217 F.Supp.2d 39, 48-49 (D.D.C. 2002) (failure to warn patient that drugs could impair driving states valid negligence claim); Myers v. Quesenberry, supra, 144 Cal.App.3d at 893-95, 193 Cal.Rptr. 733 (duty to warn patient of driving impairment arising from uncontrolled diabetic condition aggravated by profound emotional trauma); McKenzie v. Hawaii Permanente Medical Group, Inc., supra, 98 Hawai'i at 307-308, 47 P.3d 1209 (duty to warn patient of adverse reaction to medication created cause of action for personal injury to third party); Cram v. Howell, supra, 680 N.E.2d at 1097-98 (duty to
Similarly, courts in several jurisdictions have ruled that a physician may be held liable to a third party for failing to warn his patient — and sometimes people other than his patient — that the patient has a communicable disease or has been exposed to one. See C.W. v. Cooper Health System, 388 N.J.Super. 42, 60-62, 906 A.2d 440 (App.Div.2006) (duty to warn patient of positive HIV test); Estate of Amos v. Vanderbilt University, 62 S.W.3d 133, 138 (Tenn.2001) (duty to warn patient that transfusion involved AIDS contaminated blood); Reisner v. Regents of the University of California, 31 Cal.App.4th 1195, 1203, 37 Cal.Rptr.2d 518 (1995) (duty to warn patient of positive HIV test); Bradshaw v. Daniel, 854 S.W.2d 865, 872 (Tenn. 1993) (duty to warn wife that husband had Rocky Mountain Spotted Fever). In a related area, courts also have recognized a duty to warn family members of a patient's genetic condition. See Pate v. Threlkel, 661 So.2d 278, 282 (Fla.1995) (duty to warn patient of condition that could be passed on to daughter).
Indeed, failure to warn cases such as the present case have been recognized as "the strongest cases for holding the physician to a duty of care to a third person ...." 1 D. Dobbs & P. Hayden, supra, § 241D, p. 237. "[I]n this group of cases, the patient drives, but because of medication, epilepsy, or other condition, he loses consciousness and drives into the plaintiff. Since a negligent failure to warn or diagnose puts the patient at risk as well as others, it makes sense to hold the physician liable to the nonpatient victim if the physician negligently prescribed or injected medication without warning the patient against driving while medicated [or if the physician] fail[ed] to diagnose the patient's epilepsy or fail[ed] to warn the epileptic patient against driving.... Some courts simply reject liability to nonpatients ... on the ground that a duty to nonpatients would present the physician with a conflict between duties to his patient and duties to nonpatients. Such arguments are inapplicable, however, when the physician's duty of care to his own patient calls for exactly the same diagnosis or treatment that would also be safer for members of the public. In this situation ... he satisfies his duty to third persons when he satisfies
In the present case, the majority concludes that the cases of sister states should not be relied upon because many of the cases cited involve the adverse effects of medications prescribed by the physician, whereas the present case involves the adverse effects of a patient's medical condition. In my view, this is a distinction without a difference. The duty at issue in both the "medical prescription" case and the "medical condition" case is exactly the same: it is the physician's affirmative duty to warn patients about hazards — whatever their source — when the applicable standard of care dictates that the warning must be given. See 1 D. Dobbs & P. Hayden, supra, § 241D, pp. 237-38 (treating medical condition and medication as analogous for purpose of duty to warn patient of driving impairment). Indeed, in my view, the facts of the present case strongly support the imposition of a duty to warn because this case is specifically limited to a situation wherein the physician has a duty to warn the patient due to the
I further disagree with the majority that "a cause of action alleging medical malpractice must be brought by a patient against a health care provider because the language of [General Statutes § 52-190a] specifically provides that the alleged negligence must have occurred `in the care or treatment of the claimant.'" Although I agree with the majority that § 52-190a does require that the alleged negligence must have occurred in the care or treatment of the claimant, that does not prohibit us from recognizing the plaintiff's claim at common law. "A common-law rule ... may be subject to both legislative and judicial modification.... Accordingly, the issue ... is whether the legislature ... has manifested an intention to occupy the field or whether a common-law remedy would conflict with or frustrate the purpose of the act [in question], so as to stay our hand in recognizing an action at common law." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 323-24, 813 A.2d 1003 (2003). In the present case, the majority does not point to, and I cannot find, anything in the language of § 52-190a that indicates that the legislature intended to occupy the field and abrogate this court's common-law authority to recognize a cause of action by a third party against a physician under the facts of the present case. Indeed, if there were such a legislative intent barring medical malpractice claims outside the confines of § 52-190a, this court would have relied on that intent in previous cases in which we have evaluated whether to recognize a common-law cause of action for negligent infliction of emotional distress on a bystander where the negligence was predicated on malpractice. See Clohessy v. Bachelor, supra, 237 Conn. at 37-38, 675 A.2d 852 (discussing Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 [1988], and Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 [1980]). Although this court ultimately did not recognize a cause of action for bystander emotional distress where the negligence was predicated on malpractice, its decision was based on policy considerations, none of which, notably, are present here.
I disagree with the majority that the harm to the plaintiff in the present case was not foreseeable because "the plaintiff was not an identifiable victim, nor does he belong to an identifiable class of victims, because the potential victims of Troncale's alleged negligence included any random pedestrian, driver, vehicular passenger or other person who happened to come in close proximity to a motor vehicle operated by Ambrogio following her diagnosis." In support of its position, the majority relies on the foreseeability test applied in Fraser v. United States, supra, 236 Conn. at 632, 674 A.2d 811, in which this court recognized that "our decisions defining negligence do not impose a duty to those who are not identifiable victims...." I disagree with the majority's extension of the analysis in Fraser to the present situation. The issue in Fraser was a narrow one. Specifically, this court was deciding whether a psychotherapist had a duty to exercise control to prevent a patient, who was not known to have been dangerous, from inflicting bodily harm on a victim who was not either readily identifiable or in an identifiable class of victims. Id., at 626, 674 A.2d 811. The facts of this case are distinguishable
In Fraser, Doe was not known to have been dangerous, whereas in the present case, Troncale knew that Ambrogio was suffering from a medical condition that could cause sudden and unexpected blackouts. Therefore, the dangers of Ambrogio's medical condition were known to Troncale, making much of the analysis in Fraser inapplicable to the present case. Moreover, it is important to note that in the same year that this court decided Fraser, it also decided Clohessy v. Bachelor, supra, 237 Conn. at 56-57, 675 A.2d 852, wherein this court recognized third party injury without requiring identifiable victims in the form of a cause of action for bystander emotional distress. Although this court limited those who could claim third party injury, in doing so in Clohessy, this court focused on those that are most likely to suffer the greatest injury and rejected the "zone of danger" limitation, which is akin to the test being adopted by the majority in the present case, which requires that there be an identifiable victim. The concerns raised in the present case, therefore, are distinguishable from the policy considerations underlying our decision in Fraser v. United States, supra, 236 Conn. at 635, 674 A.2d 811, wherein we held that the psychiatrist therein did not owe a duty to third parties to control Doe's violent behavior or warn the public of Doe's dangerousness. We noted, however, that at least where a patient has not threatened a specific person or class of persons, imposing a duty to control the patient and/or warn the public would unjustifiably jeopardize "the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship ... and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill." (Citation omitted.) Id. The same concerns are not present in this case because the allegation is a failure to warn the patient, not the public.
In support of its conclusion that public policy concerns do not favor recognizing the plaintiff's cause of action in the present case, the majority asserts that, "[w]ith respect to the compensation of innocent parties, the present situation is not one in which an injured party necessarily receives no compensation, as the plaintiff suggests. Injured parties may be covered by their own motor vehicle and health insurance policies. Moreover, accidents caused by
The majority assumes that a remedy is available to the plaintiff in the present case through either a tort claim against Ambrogio, or through the motor vehicle insurance system. I do not believe that, given the circumstances of this case and other similar cases, this assumption is correct. I do not believe that the plaintiff would always be compensated in this situation. To the contrary, if the driver is insured, depending on the specifics of his or her coverage, the only additional financial compensation that the plaintiff would be provided is possible underinsured motorist coverage. If the driver had no knowledge of the condition, the driver would not be liable and his or her insurance would not cover the damage under its liability provisions. Further, the plaintiff's no-fault motor vehicle insurance would only pay a small percentage of medical bills and, depending on the plaintiff's health insurance, a portion of the bills would be paid minus deductibles. There would be no recovery for such items as pain and suffering, permanent disability and loss of pay. Accordingly, I disagree with the majority that the plaintiff would be adequately compensated through motor vehicle and health insurance.
Moreover, contrary to the majority's conclusion, I do not agree that recognizing the duty to warn in the present case would result in increased litigation and higher health care costs. To the contrary, in my opinion, it would merely change the parties involved in the litigation. Instead of requiring the injured party to file an action against the driver and the driver to counter
Furthermore, the majority's concern over involving physicians in litigation ignores the fact that, as a practical matter, physicians of patients involved in the type of accidents at issue will necessarily be involved in the resulting litigation, and not only as witnesses. Drivers named as defendants under these circumstances likely would file indemnification-type claims against their physicians. The physician will be part of the litigation one way or another in this instance, so the cost factor is already present.
Also, the majority fails to consider the impact on health care costs of the uncompensated and uninsured victims that result under its no-duty rule. The plaintiff remains injured regardless of the outcome of the present case, and someone must pay for his care. The social costs of the physician's negligence does not disappear if a plaintiff's claim is barred; rather, such costs are just shifted onto the shoulders of someone who did not cause the injuries, and therefore cannot prevent them from happening. The majority's conclusion recognizes the fact that we have a statutory scheme providing for mandatory insurance for drivers of motor vehicles. Its argument fails, however, to address those injured
I further disagree with the majority that "expanding the duty of health care providers would create a significant risk of affecting conduct in ways that are undesirable because it would interfere with the physician-patient relationship and give rise to increased litigation, with all of its attendant costs." Recognition of the plaintiff's claim does not extend a physician's obligation beyond that duty to warn, which the physician already owes to the patient. The allegation in the complaint in the present case is directed toward Troncale for his failure to warn Ambrogio; it is not a new duty placed upon the physician to warn the public. The proposed duty does not even add any burden or cost to the physician beyond the burden he undertook to treat the patient with reasonable care. 1 D. Dobbs & P. Hayden, supra, § 241D. As this court stated when it extended the duty of a contractor removing snow beyond the property owner to all foreseeable users of a sidewalk: "[contractors] always have had the duty to perform their work in a nonnegligent manner, and our conclusion does no more than to hold contractors liable to those foreseeably injured by their negligence." Gazo v. Stamford, supra, 255 Conn. at 254, 765 A.2d 505. The proposed duty I have set forth herein will not impinge on the physician-patient relationship or on a physician's professional obligation to exercise independent medical judgment because physicians owe the same duty to the patient already. The physician's duty to warn the patient does not affect the physician's ability to make treatment decisions. This is not a case where a physician is required to consider the risks to third persons when making treatment decisions for his patient. Rather, the allegation is that Troncale failed to warn Ambrogio of the risks in driving with her medical condition. Further, the claim in this case is not that Troncale has a duty to control Ambrogio. See 1 Restatement (Third), Torts, Liability for Physical Harm § 41, reporters' note to comment (h), pp. 808-809 (Proposed Final Draft No. 1, 2005) (noting that reasoning used to reject duty to control patient is "unpersuasive when ... the plaintiff claims that the physician should have provided a warning to the patient"). The claim in this case rests on Troncale's failure to inform Ambrogio of a driving impairment relating to her existing and known medical condition, which Troncale had diagnosed. Certainly, there are no confidentiality or conflicting duties in this case. See, e.g., 1 D. Dobbs & P. Hayden, supra, § 241D, pp. 237-38 (observing that duty to warn patient creates no conflict or threat to patient privacy).
The majority further concludes that the optimal treatment of patients is frustrated by extending a physician's liability to third parties. The majority cites Maloney v. Conroy, supra, 208 Conn. at 403, 545 A.2d 1059, in which this court declined to permit bystander recovery for emotional distress arising out of alleged medical malpractice, stating that "[i]t 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." The majority further asserts that a medical professional owes a duty of undivided loyalty to the patient and is not to be distracted or compromised by fear of liability to others, and relies on fears that an extension of liability will negatively affect physicians' treatment decisions and will cause physicians not to accept difficult cases for fear of third party liability. Although I agree that the physician owes an undivided loyalty to his patient, I reemphasize the fact that this doctrine does not affect that loyalty. The physician has to warn the patient in accordance with the standard of care for the given condition of
The majority additionally asserts that "[t]he proposed duty also would conflict with the public policy implicit in General Statutes § 14-46 of shielding health care providers from liability to members of the general public by providing that health care providers `may' report any persons diagnosed with `any chronic health problem which in [the physician's] judgment will significantly affect the person's ability to safely operate a motor vehicle ... for the information of the commissioner [of motor vehicles] in enforcing state motor vehicle laws ... [and] ... for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this state.'" (Emphasis in original.) I disagree. Although the legislature may have eliminated the requirement that health care providers must report persons to the department of motor vehicles, such a decision does not reflect any public policy in favor of not requiring health care providers to warn their own patients of the dangers associated with their medical conditions. The requirement to report a patient to the department of motor vehicles may have a detrimental effect on the provider-patient relationship and involves divulging patient information to a third party. As I have discussed previously herein, requiring the physician to warn his own patient about the effects of a medical condition does not implicate those concerns. It is a duty, as alleged, that the physician already has to the patient under the existing standard of care. Accordingly, I am not persuaded that § 14-46 is relevant to the present case.
The majority further claims that the parties' expectations militate against recognizing the duty to warn in the present case. Specifically, the majority asserts that physicians do not expect to be held liable to members of the general public for decisions regarding patient treatment, and that members of the public injured in automobile accidents expect compensation from the party causing the accident, not the party's medical care providers. In effect, the majority claims that the plaintiff is attempting to make physicians insurers of highway safety by suggesting that such physicians could be liable to a vast category of unknown individuals that could be harmed by patients operating automobiles, including pedestrians, bicyclists, construction workers and out-of-state residents operating vehicles on Connecticut roads. Again, the plaintiff is not asking us to impose a new duty of care in favor of nonpatients. The doctrine requires the physician to do what is already required of him: warn his patient of the risk of driving with her condition. Further, as stated previously, there may be no recovery against the patient if she was not negligent. The record in the present case does not reflect why the case against Ambrogio was withdrawn. The plaintiff is not advocating that the physician become an insurer of highway safety. The plaintiff still has the burden of proof to demonstrate that Troncale breached the standard of care that he owed to Ambrogio. In my view, all physicians may expect to pay compensation to their patients when they breach the standard of care owed to their patients. This extension of the limited duty to warn extends liability to third parties as the result of the physician's negligence. As discussed previously, the fact that pedestrians or other drivers might be injured due to the driving impairment of the patient is certainly foreseeable.
Similarly, certain policy concerns that caused this court to decline invitations to extend the parameters of our negligence
In Jacoby v. Brinckerhoff, supra, 250 Conn. 86, 735 A.2d 347, the plaintiff brought a direct negligence action against his ex-wife's psychiatrist, claiming the psychiatrist had acted negligently in rendering professional advice and treatment to her concerning marital problems, which ultimately caused a breakdown of the marriage. This court rejected the claim, principally because imposing on psychotherapists a duty to exercise care for the benefit of patients' spouses — in respect to providing therapy and treatment to the patient — would interfere with the "duty of undivided loyalty" that psychotherapists owe to their patients. Id., at 97-98, 735 A.2d 347. The limited duty to warn that I would recognize would not give rise to a conflict of duties, let alone the sort of inevitable and irreconcilable conflict that counseled against adoption of the duty of care proposed in Jacoby. See, e.g., 1 D. Dobbs & P. Hayden, supra, § 241D, pp. 237-38 (duty to warn patient creates no conflict). Thus, the limited duty to warn the patient advances important public interests while avoiding the significant policy objections that have defeated other third party claims against medical professionals, including those in Fraser, Zamstein and Jacoby.
Although we are presented with a different set of facts in the present case, I would contend that the existence of an objective duty on the part of Troncale to warn Ambrogio of her driving impairment presents the necessary indicia to approve the doctrine. Further, the fact that Ambrogio may experience a blackout while driving — a routine act — and cause injury to a pedestrian, places the plaintiff within a class of victims that was foreseeable. Accordingly, I respectfully dissent.
"Other statutes dictate that an owner is not relieved of liability simply because the owner is not the operator of the vehicle. General Statutes § 14-213b proscribes operation of an uninsured vehicle ... and places responsibility for adherence to that rule on the owner, even when the owner is not the operator of the vehicle. In addition, General Statutes § 14-154a addresses owners who rent or lease their vehicles, providing in relevant part: `(a) Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner...."
"The legislature, therefore, has made clear, through its use of mandatory language and mutually reinforcing statutes, that, as a general matter, the owner of a vehicle registered in Connecticut is responsible for maintaining liability insurance on that vehicle." (Emphasis added.) Farmers Texas County Mutual v. Hertz Corp., supra, 282 Conn. at 542-43, 923 A.2d 673.
"(b) Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected."
