New York State Court of Claims

New York State Court of Claims

R. M. v. STATE OF NEW YORK, #2003-018-210, Claim No. 106105, Motion No. M-65422


Defendant's motion to dismiss this claim is granted. This Court finds that the defendant owed no duty to the infant claimant and as a result no cause of action has been set forth.

Case Information

T. S. Individually and as Mother and Natural Guardian of R. M., an infant The Court has sua sponte amended the caption to protect the privacy of the individuals involved.
Claimant short name:
R. M.
Footnote (claimant name) :
The Court has sua sponte amended the caption to protect the privacy of the individuals involved.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
DelDUCHETTO AND POTTERBy: Ernest DelDuchetto, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Gordon J. Cuffy, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant brings a motion to dismiss the claim. Claimant opposes the motion.
Defendant avers that claimant served the claim on May 23, 2002, which was not within 90 days of the date of accrual in accordance with Court of Claims Act §10(3). As a result, this Court lacks jurisdiction to hear the claim. Defendant also asserts that the claim was served by ordinary mail, not certified mail, return receipt requested, as required by Court of Claims Act §11. This improper method of service also renders the Court without jurisdiction to hear the claim. Finally, defendant maintains that the claim fails to state a cause of action and should be dismissed pursuant to CPLR 3211[a][7].
Claimant, in her responding papers, acknowledges that the claim was served on May 23, 2002, by regular mail. Upon learning of the incorrect service, claimant served the claim by certified mail, return receipt requested on July 1, 2002. Claimant attached a copy of the return receipt evidencing receipt by the assistant attorney general's office on that date.

Court of Claims Act §10(5) provides that if the claimant is under a legal disability at the time the claim accrues, the claim may be presented within two years of the date the disability is removed. In accordance with CPLR 208, infancy is a legal disability. Claimant, R. M. was born on December 22, 2000, and is clearly an infant (CPLR 105[j]). Accordingly, the properly served claim on July 1, 2002, was timely commenced as to the infant's cause of action (
see, Court of Claims Act §10(5); Henry v City of New York, 94 NY2d 275; Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111; Matter of Marshall v State of New York, 144 Misc 2d 193; Bologna v State of New York, Ct Cl, unpublished decision of J. Waldon, signed May 16, 2001, UID #2001-027-559, Claim No. None, Motion No. M-62683)[1]
However, the individual claim of the infant's mother does not enjoy the benefit of the tolling provision of Court of Claims Act §10(5) and must be dismissed. It is untimely pursuant to Court of Claims Act §10(3). The Court does not have jurisdiction to hear her claim.

Defendant's final argument for dismissal of the claim is that it fails to state a cause of action because defendant did not owe the infant claimant a duty of care and thus cannot be liable in negligence. The claimant-mother has brought a related late claim application (Motion Number M- 65294) in which the issue of whether defendant owed her a duty of care was also addressed (
T. S. v State of New York, Ct Cl, unpublished decision of J. Fitzpatrick, Claim No. None, Motion No. M-63494).
The claim herein asserts that defendant is liable in damages to the infant as a result of the child contracting the HIV virus. The infant claimant was conceived in or about March 2000 and was born, as previously set forth, on December 22, 2000. The infant claimant's father had blood drawn at SUNY Health Science Center (hereinafter referred to as University Hospital) on May 29, 2000 to determine whether he had the human immunodeficiency virus (hereinafter HIV). The results, which became available on June 21, 2000, were never provided to claimant's father. The claimant-mother and father continued to engage in a sexual relationship until after the infant's birth when it was discovered the results were positive. Both the infant and his mother have tested positive for HIV. Claimant-mother had a routine HIV test on July 26, 2000 which was negative.
The parents of the infant are not married. The basis for the claim is defendant's negligence in failing to advise the infant claimant's father of his positive HIV status. Both the father and mother indicate they would have ceased sexual relations had they known the test results on or about June 21, 2000, and thereby allegedly preventing claimant from contracting HIV.
On a motion to dismiss for failure to state a cause of action, the Court must accept the factual assertions in the claim as true, view the claim in the light most favorable to the infant claimant and give him every favorable inference (
Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; Lewis v Drake, 295 AD2d 482).
Defendant argues that the State owed no duty to the infant, a critical element of a negligence cause of action. The claim does not assert that the defendant breached any duty to the infant on to his father. Without a duty running directly to the infant, there can be no liability against the State, despite any wrongdoing in failing to provide the HIV test results to the infant's father (
Pulka v Edelman, 40 NY2d 781, 782; Eiseman v State of New York, 70 NY2d 175, 187; Kelley v Niagara County Health Dept., 283 AD2d 1014, 1015; Prosser on Tort §30 at 143 [4th ed.]). In resolving legal duty questions Courts "... resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty"(Tenuto v Lederle Labs, 90 NY2d 606, 612; Eiseman v State of New York, 70 NY2d at 187). Foreseeability of injury alone does not implicate a duty, for the "law cannot provide a remedy for every injury incurred"(Albala v City of New York, 54 NY2d 269, 274; Howard v Lecher, 42 NY2d 109). Whether a duty exists is a question of law, not fact (Tenuto v Lederle Labs, 90 NY2d at 612; Eiseman v State of New York, 70 NY2d 187).
Clearly there was no duty arising from a physician-patient relationship between the infant claimant and defendant;
in the absence of a physician-patient relationship, no medical malpractice cause of action exists. But our analysis does not end here. Even in the absence of a physician-patient relationship, there can be liability in ordinary negligence.
The claim seeks to impose liability upon the State for injury to the infant claimant, as a third party to the physician-patient relationship of the infant's father with his doctor, within which the doctor clearly had a duty to inform the father of the results of his HIV test. The question that arises here is whether a doctor or health care facility ordering an HIV test and obtaining the results owes a duty beyond their patient to persons who may engage in a sexual relationship with their patient or to a child born from such a relationship. Stated another way, are the patient's sexual partner or child entitled to protection from the failure of defendant to disclose to the patient the results of an HIV test?

No similar cases were found in this State, however, in researching the issue some jurisdictions have extended a physician's liability to a third party under a similar theory. For instance in
Estate of Amos v Vanderbilt University, 62 SW3d 133, the husband of a patient, who was infected with HIV from a blood transfusion received during her surgery, sued the hospital for negligent failure to warn the patient that she was at risk for contracting HIV. At the time the patient received the blood transfusion she was not married; however, the Court held that it was reasonably foreseeable that the patient would one day marry and have a family, and her future husband and daughter were within the class of identifiable third persons at risk for exposure to HIV. The duty imposed was one to warn the patient so that she could take adequate precautions to prevent transmission of the disease to her husband and child. In that case, the Tennessee Supreme Court relied upon Bradshaw v Daniel, 854 SW2d 865, 870, which imposed upon a physician a duty to a non-patient third party where the physician's negligence causes reasonably foreseeable injuries to the third party, a family member. However, here in Estate of Amos, the Tennessee Supreme Court extended the duty even further than in Bradshaw v Daniel, supra, noting that the zone of danger is much larger and goes beyond the immediate family when the risk involves transmission of a deadly communicable disease (See also, Reisner v Regents of Univ. of Cal., 31 Cal App 4th 1195, [which found a physician owed a duty to a patient's boyfriend to warn patient of her HIV status, even when the doctor did not know of the boyfriend]; DiMarco v Lynch Homes-Chester County, Inc., 525 Pa 558, 583 A2d 422 [physician for blood technician who contracted Hepatitis from a patient owed a duty of care to the technician's sexual partner for the advice given to the technician to refrain from sexual relations for six weeks when abstention should have been for 26 weeks]) (Compare, Hawkins v Pizarro, 713 So 2d 1036,[patient was incorrectly advised she had tested negative for Hepatitis C, husband whom she met after the mis-diagnosis contracted Hepatitis C and sued the patient's doctor, court held that physician owes duty to identified third parties and since husband was not known to doctor at the time, no liability could be imposed]; Lemon v Stewart, 111 Md App 511, 527-528, [members of patient's extended family sued doctor for failure to advise patient of HIV-positive status, court held that extended family were not in the class of persons known to be at substantial risk of contracting virus and no duty extended to them, however may extend to sexual or needle-sharing partner]).
Although no cases were found in this State directly on point, in reviewing the case law it is clear that the courts of this State have consistently restricted any extension of a physician's duty to
where there is a connection between the services provided to the patient and the third party; namely an awareness or understanding on the part of the defendant, actual or constructive, that the service being provided is also for the protection of the third party, and that there will be reliance on the defendant's performance of that service (Cohen v Cabrini Medical Center, 94 NY2d 639; Tenuto v Lederle Labs, 90 NY2d at 612; Eiseman v State of New York , 70 NY2d at 187-188; McNulty v City of New York, 295 AD2d 42; Miller v Rivard, 180 AD2d 331; Wojcik v Aluminum Co. of America, 18 Misc 2d 740). The courts are careful to balance the increased exposure to liability with established tort principles and consideration of changing moral and societal factors.
Tenuto v Lederle Labs, the Court of Appeals reviewed precedential criteria whereby a physician's duty has been extended beyond the patient to a third party. First, when the facts indicate a physician in performing the duty to the patient "knew or reasonably should have known" that certain third parties were relying on the service being provided to the patient a duty has been extended (Tenuto v Lederle Labs, 90 NY2d at 606, 612; Eiseman v State of New York, 70 NY2d at 188). The duty has also been extended where a special relationship was present, primarily familial, arising when the patient has an infectious or contagious disease which places the family at risk of contracting the same condition. The physician's duty in those cases has been extended to instruct and advise the family of the risks (Tenuto v Lederle Labs, 90 NY2d at 612-613). Finally, the duty has been extended where the service performed on behalf of the patient "necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient, whom the doctor knows or should know may suffer harm by relying on prudent performance of that medical service"(Tenuto v Lederle Labs, 90 NY2d at 613 ). In Tenuto, the Court of Appeals found that the duty of the pediatrician extended to the father for injuries sustained in contracting polio from his infant. The infant had received a live polio vaccine and the doctor, knowing of the risks this posed to the infant's caregivers who came in contact with the infant's bodily excretion, failed to warn the parents. The Court held that the father fell within "a determinate and identified class-immediate family members-whose relationships to the person acted upon have traditionally been recognized as a means of extending and yet limiting the scope of liability for injuries caused by a party's negligent acts or omissions"(Tenuto v Lederle Labs, 90 NY2d at 614). The court further noted that the reasons for finding a special relationship existed between the parents and the pediatrician was particularly persuasive since it was the parents who contracted with the physician for services and who, to the knowledge of the physician, were the primary caretakers of the infant.
The Court of Appeals in
Cohen v Cabrini Medical Center, 94 NY2d 639, revisited the predicates set forth in Tenuto v Lederle Labs, for extending a physician's duty to a third party. The Court found that in Cohen v Cabrini Medical Center the physician did not owe the wife of the patient a duty of care as a result of a failed surgical procedure which instead of improving, actually decreased, her husband's fertility resulting in the wife undergoing several in vitro fertilization procedures. The Court noted that the procedure undertaken was not intended to prevent harm to her but to actually provide a benefit. Any harm suffered was a result of her voluntary decision to undergo in vitro fertilization procedures, which the Court contrasted with the parent in Tenuto v Lederle Labs, who contracted polio, not due to any voluntary exposure to polio, but as a direct result of the physician's failure to advise the parent of the risks and necessary precautions.
McNulty v City of New York, 295 AD2d 42, the Appellate Division, First Department, extended the physician's duty outside the familial relationship to a friend of the patient. The patient in that case suffered from a highly contagious form of meningitis. The friend had been in close contact with the patient prior to her admission to the hospital, and the friend inquired of the doctors as to whether she was at risk of contracting meningitis and whether any treatment was necessary. She was told that no treatment was necessary. The friend contracted meningitis and has suffered permanent injuries as a result. The Court found an issue of fact existed as to whether the doctors rendered the advice the friend purported and whether the doctors had reason to know that the friend would rely on their advice. Relying on the language in Tenuto, the Court found that the fact that the friend was outside the patient's household was not decisive on the issue of whether a duty existed, instead focusing upon her reliance on the direct misrepresentation of the doctors (See also, Doe v Smith, 184 Misc 2d 186 [where Court found physician owed duty to hospital technician who contracted HIV and tuberculosis from a syringe containing a pus specimen the doctor extracted from the patient. Court held duty owed to properly package a needle used in a medical procedure to those individuals to whom the needle is directed and to those who must transport it]).
In reviewing the case law in this State, one factor repeatedly emerges where a physician's duty of care is extended to a third party: a nexus between the physician and the third party
(see, Cohen v Cabrini Med. Ctr., 94 NY2d 639; Tenuto v Lederle Labs, 90 NY2d at 606; Eiseman v State of New York, 70 NY2d 175; McNulty v City of New York, 295 AD2d 42; Miller v Rivard, 180 AD2d 331; Wojcik v Aluminum Co. of America, 18 Misc 2d 740). This factor is glaringly missing here. Nowhere is there any assertion that the defendant had any knowledge that the father was engaged in an on-going sexual relationship or expecting a child. All of the father's paperwork is completed as "single" and he never even lists claimant-mother as an emergency contact. (See Cuffy opposing affirmation for motion M-65294, Exhibit 2.) In fact, for emergency contacts the father lists none. There is no assertion that claimant-mother had any involvement with the defendant; and in fact, it seems she didn't even know that the father was tested for HIV. (See for instance, claimant-mother's affidavit Exhibit C, paragraph 4, "I have since learned that on May 29, 2000, the father of my child, [Mr. M.] was administered an HIV test at University Hospital." [emphasis added].) There was no direct misrepresentation to claimant-mother, or obviously infant claimant, and there was no reason defendant would have had any notice that the father was involved in a sexual relationship or expecting a child. A doctor's general awareness of the risk of transmission of the virus to others through sexual contact, needle sharing or other high risk behavior encompasses the risk to the general public for which this State is loathe to impose a duty of care. (See, the affidavit of Dr. Richard Klein, submitted in opposition to defendant's motion which suggests that a primary purpose for reporting the results of an HIV test is to "prevent the patient from transferring the virus to family or other members of the public"[Klein affidavit paragraph 5 (emphasis added)].) The Courts of this State have consistently refused to extend a duty to an unlimited class of individuals (See, Tenuto v Lederle Labs, supra at 612; Purdy v Public Adm'r of County of Westchester, 72 NY2d 1; Eiseman v State of New York, 70 NY2d 175, 187). Opening the door to a physician's liability for failure to notify the patient of his or her potentially communicable condition where there is absolutely no contact between the physician and the third party, no notice that this particular third party is at significant risk or relying on the physician's services could potentially open the "floodgates" of liability to every person the patient could expose to the condition. Since the rationale for such an extension of liability could not logically be limited to any particular disease or condition, for more easily communicable diseases, i.e., those for which there is airborne transmission, the physician's potential liability could be endless; a possibility which this Court is unwilling to unleash despite the most unfortunate circumstances presented here.
Moreover, the legislature of this State has precluded a physician, or his or her employer, designated agent, health care facility or health care providers with whom the physician is associated, from liability for their failure to directly advise or notify family members, or other known individuals of their risk of infection with HIV(Public Health Law § 2783[3][a]). Permitting liability under the circumstances presented here, would allow a third party to recover indirectly what the legislature has prohibited directly.

Accordingly, based upon the foregoing, this Court finds that the defendant owed no duty to the infant claimant and as a result no cause of action has been set forth. Defendant's motion is granted.

April 9, 2003
Syracuse, New York

Judge of the Court of Claims

The Court considered the following in deciding this motion:

Notice of Motion.........................................................................................1

Affirmation of Gordon J. Cuffy, Esquire, Assistant Attorney General

with all exhibits attached thereto.....................................................2

Affirmation in opposition of Ernest A. DelDuchetto, Esquire

with all exhibits attached thereto.....................................................3

Affidavit of Richard Klein, M.D., regarding Motion No. M-65294...........4


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