HOFMANN v. BLACKMON

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Docket Number

No. 69-473.

Attorney(S)

Robert Orseck, of Pudhurst Orseck, and Spence, Payne Masington, Miami, for appellants. James E. Tribble, of Blackwell Walker Gray, Miami, for appellee.

Judges

STEWART, JAMES R., Jr., Associate Judge.

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Smart Summary

Factual and Procedural Background

This appeal challenges a partial summary judgment entered for the defendant (the executrix of a physician's estate). Viewed in the light most favorable to the plaintiffs: (a) the father was examined, x-rayed and treated by the physician for about two years without the physician diagnosing tuberculosis; (b) the plaintiffs' two-year-old daughter was found to have tuberculosis of the spine and required extensive treatment; (c) the father's condition was thereafter diagnosed as tuberculosis and he required treatment. Plaintiffs sued in three counts: one for the father's injuries from the alleged delayed diagnosis and two for the child's injuries arising from contracting tuberculosis from her father. The trial court granted summary judgment for the defendant on the second and third counts. The plaintiffs appealed.

Legal Issues Presented

Whether a physician owes a duty to a minor member of a patient's immediate family to inform those responsible for the minor of the nature and dangers of a contagious disease and necessary precautions.
Whether that duty is negated if the physician negligently failed to discover or become aware of the contagious disease in the patient.
Whether summary judgment was appropriate on the counts alleging the child's injuries given the asserted duty question.

Arguments of the Parties

Appellants' Arguments

Plaintiffs alleged the physician negligently failed to diagnose the father's tuberculosis in a timely manner, leading to the father's and the child's injuries.

Appellee's (Defendant's) Arguments

For purposes of the appeal the defendant conceded she did not conclusively demonstrate the absence of a genuine issue of material fact regarding negligence in diagnosing the father.
The defendant argued, however, that the physician owed no duty to the minor child to warn or inform her caretakers because the physician did not actually know of the existence of tuberculosis in the patient.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wojcik v. Aluminum Company of America, 1959, 18 Mich. 2d 740, 183 N.Y.S.2d 351	Supports the proposition that once a contagious disease is known to exist a physician has a duty to advise and warn members of the patient's immediate family.	Included among authorities the court relied upon to recognize the duty to warn family members.
Davis v. Rodman, 1921, 147 Ark. 385, 227 S.W. 612	Authority recognizing a physician's duty to warn family of contagious disease once known.	Relied on as part of the body of authority establishing the duty to inform immediate family.
Skillings v. Allen, 1919, 143 Minn. 323, 173 N.W. 663	Authority on physician's duty to advise/warn family about contagious conditions.	Used to support the court's recognition of such a duty.
Edwards v. Lamb, 1899, 69 N.H. 599, 45 A. 480	Early authority recognizing duty to warn family members regarding contagious disease.	Cited among cases establishing the general rule the court applied.
41 Am.Jur., Physicians and Surgeons, § 101	Restatement of the principle that a physician must warn immediate family when a contagious disease is present.	Referenced as part of the legal authority supporting the duty to warn.
70 C.J.S. Physicians and Surgeons § 48	Secondary authority recognizing physician obligations to warn family of contagious diseases.	Relied upon as corroborating legal authority.
23 Fla.Jur., Negligence, § 17	Principle opposing rewarding a physician for failing to discover what was within professional duty to discover.	Applied to reject the defendant's argument that lack of actual knowledge negated the duty to warn; court held duty is not excused by negligent failure to be aware.

Court's Reasoning and Analysis

The court began by stating the facts in the light most favorable to the plaintiffs. It noted the defendant expressly conceded she had not shown the absence of a genuine issue of material fact on the negligence claim as to the father's diagnosis. The central legal dispute was whether the physician owed a duty to the minor child when the physician allegedly did not actually know of the contagious disease. The court surveyed prior authorities and secondary sources recognizing that, once a contagious disease is known to exist, a physician has a duty to use reasonable care to advise and warn members of a patient's immediate family of the disease and its dangers. The defendant's position—that the duty does not apply if the physician did not actually know of the disease—was rejected: the court explained that adopting that position would in effect reward a doctor for failing to discover what a factfinder might determine was within the physician's professional duty to discover, citing 23 Fla.Jur., Negligence, § 17. On that basis the court concluded the duty to inform immediate family members exists and is not negated by the physician's negligent failure to become aware of the contagious disease.

Holding and Implications

REVERSED AND REMANDED.

Holding: The appellate court reversed the trial court's summary judgment as to the counts alleging the child's injuries and remanded with instructions that the lower court vacate the summary judgment and conduct further proceedings consistent with the opinion. The court held that a physician owes a duty to a minor who is an immediate family member living with a patient suffering from a contagious disease to inform those responsible for the minor of the nature of the disease and the precautionary steps to prevent transmission, and that this duty is not negated by the physician's negligent failure to discover the disease.

Implications: The direct effect is that the defendant's summary judgment on the child's claims must be vacated and the case proceed. The opinion states the applicable duty and declines to excuse that duty based on the physician's lack of awareness; the opinion does not discuss broader precedent beyond applying the authorities cited.

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HOLLY DALE HOFMANN, A MINOR, BY AND THROUGH HER FATHER AND NEXT FRIEND, WILBUR DALE HOFMANN AND WILBUR DALE HOFMANN, INDIVIDUALLY, APPELLANTS, v. DOROTHY W. BLACKMON, AS EXECUTRIX OF THE ESTATE OF WILLIAM P. BLACKMON, M.D., APPELLEE.

STEWART, JAMES R., Jr., Associate Judge.

This is an appeal from a partial summary judgment entered on behalf of the defendant. The facts stated in a light most beneficial to the plaintiffs are:

(a) Plaintiff/father was examined, x-rayed and treated by a physician for some two years without the physician diagnosing his condition as tuberculosis.

(b) Plaintiff/minor child, a two year old girl, was found to have tuberculosis of the spine and required extensive medical treatment.

A suit was brought against the physician's executrix in three counts. The first pertained to the father's injuries resulting from the physician's alleged negligence in failing to timely diagnose his condition. The remaining two counts pertained to the minor child's injuries resulting from contracting tuberculosis from her father. The lower court granted defendant's motion for summary judgment on the second and third counts. We reverse.

The defendant concedes for the purposes of this appeal that she did not conclusively demonstrate the absence of a genuine issue of material fact as to whether the physician negligently failed to diagnose tuberculosis in the father. She does contend the physician breached no duty owed to the minor child so as to permit recovery for the child's injuries resulting from the alleged negligence and, therefore, the lower court correctly entered summary judgment.

It is recognized that once a contagious disease is known to exist a duty arises on the part of the physician to use reasonable care to advise and warn members of the patient's immediate family of the existence and dangers of the disease. Wojcik v. Aluminum Company of America, 1959, 18 Mich. 2d 740, 183 N.Y.S.2d 351; Davis v. Rodman, 1921, 147 Ark. 385, 227 S.W. 612; Skillings v. Allen, 1919, 143 Minn. 323, 173 N.W. 663; Edwards v. Lamb, 1899, 69 N.H. 599, 45 A. 480; 41 Am.Jur., Physicians and Surgeons, § 101; 70 C.J.S. Physicians and Surgeons § 48.

The defendant contends that such precedent does not apply in the instant case because the physician did not actually know of the existence of tuberculosis. To apply such logic would reward the doctor for failing to discover that which a finder of fact may determine was within his professional ability to discover and, therefore, was his duty to discover. 23 Fla.Jur., Negligence, § 17.

We hold that a physician owes a duty to a minor child who is a member of the immediate family and living with a patient suffering from a contagious disease to inform those charged with the minor's well being of the nature of the contagious disease and the precautionary steps to be taken to prevent the child from contracting such disease and that the duty is not negated by the physician negligently failing to become aware of the presence of such a contagious disease.

Reversed and remanded with instructions that the lower court vacate the summary judgment entered on behalf of the defendant and conduct such further proceedings as are consistent herewith.

McCAIN and OWEN, JJ., concur.