Digested from Medical Economics, 7/20/07)
A person who was never your patient can sue you and win if they were infected by one of your patients whom you have treated for a dangerous communicable disease.
If a patient tests positive for such communicable diseases as hepatitis C, HIV or tuberculosis, it is your duty to advise the patient of the fact and to counsel on how to avoid infecting others. If you fail to do both (advise and counsel) and the patient passes the illness to a third party, that person can sue you for malpractice.
In such cases, the court will rely on "foreseeability"; the foreseeability that an uninformed
patient could infect a third party.
Although this may seem a bit far-fetched, courts from California to New Jersey have ruled in favor of HIV patients' sexual partners who sue physicians after becoming infected with the virus. As a California court stated, "When a physician treats a patient who has been exposed to or who has contracted a communicable disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. Such precautions are take not to protect the health of the patient, whose well-being has already been compromised, such precautions are taken to safeguard the health of others."
The message is clear: beyond the traditional diagnosis, treatment and informed consent, a physician treating a patient with a contagious disease must advise on sanitary measure and possible quarantine, as well as the practice of safe sex or abstinence from sex. Doctors can provide such guidance directly, through a trained staff member or by referral to an outside counselor. However, if the patient fails to show for an appointment with an outside counselor, you could be held liable on the basis that you or a staff member could have readily provided the counseling.
As always, thoroughly document any course of action, indicating in detail what was told to the patient. If referring elsewhere, document the reason behind that decision and steps taken to follow up to ensure such counseling took place.
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