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District Court of Appeal of Florida • 1998

Hawkins v. Pizarro

713 So. 2d 1036

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Takeaway

In short, this case holds that a doctor's duty to protect third parties from a patient's disease does not extend to a later, unknown sexual partner; Florida requires the third party to be identified and known to the physician.

Background

In May 1994, Dr. George Pizarro tested Ellen Shaw for hepatitis C. Although the laboratory correctly reported a positive result, Pizarro's office mistakenly told Shaw that the result was negative. Several months later, Shaw met James Hawkins; they later married. While considering pregnancy in 1995, Shaw was retested and learned that she had hepatitis C. After Shaw asked Pizarro to review the earlier test, he discovered the original positive result. Hawkins then tested positive for hepatitis C.

Shaw and Hawkins sued Pizarro for medical negligence. Hawkins alleged that, had Pizarro accurately informed Shaw of her diagnosis and the risk of sexual transmission, Shaw and Hawkins could have taken precautions that would have prevented Hawkins's infection. Hawkins submitted an expert affidavit stating that a physician had a continuing duty to communicate correct positive results for a contagious disease and that it was foreseeable Shaw could transmit hepatitis C to a sexual partner. The trial court granted summary judgment against Hawkins because he was unknown to Pizarro when the incorrect result was communicated. Hawkins appealed.

Issues

Issue #1

Whether a physician's duty to correctly inform a patient that she has hepatitis C extends to a future, unidentified sexual partner who allegedly contracts the disease from the patient.

Holding

No. Under Pate v. Threlkel, a physician's duty may run to third parties only when they are certain identified persons whose existence is known to the physician; Hawkins did not meet that requirement.

Reasoning

The court viewed the pleadings and affidavits in Hawkins's favor, as required on summary judgment. On that view, the record supported the propositions that hepatitis C was sexually transmitted in this case and that an appropriate diagnosis and warning would include advice about the risk of sexual transmission.

The court also accepted, for summary-judgment purposes, that the duty to warn a patient about a contagious disease serves not only the patient's interests but also the interests of potential third parties. Because the patient has already contracted the disease, warning the patient may specifically protect others from transmission.

But Pate v. Threlkel imposed an additional limit on third-party medical-malpractice duties. The standard of care must benefit certain identified third parties, and the physician must know those persons exist. That limitation allowed a duty to a patient's known children in Pate, where the condition was genetically transferable, but it did not extend to an unknown member of the public.

When Pizarro's office incorrectly informed Shaw that her test was negative, Shaw had not yet met Hawkins. Hawkins was therefore neither an identified third party nor a person whose existence was known to Pizarro at the relevant time. Because Pate's identified-and-known-third-party requirement was not satisfied, Pizarro owed Hawkins no actionable duty, and summary judgment was proper.