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Monday, 7 June 2010

Doctor-Patient Sex - Is There a Duty to Warn the Patient's Spouse?

Justice Nicholas Colabella recently ruled in Levine v Werboff that an aggrieved husband is entitled to bring suit against his wife's psychiatrist.

Carl Levine alleges that Werboff had unprotected sex with his wife without revealing that he was infected with the herpes virus and without using precautions to prevent transmission. Levine claimed that as a result of Werboff's actions his wife contracted herpes and passed on the infection to him.

Werboff argued that Levine did not have standing to sue him. Judge Colabella disagreed. Here's the judge's reasoning:

1. New York Public Health law - "makes it a misdemeanor for a person, knowing himself to be infected with an infectious sexually transmitted disease, to have sexual intercourse with another."

2. Although judges are concerned about expanding the scope of duties, "there is nothing unfair about extending such a duty to a spouse of the infected person."

3. The judge, however, rejected Levine's effort to charge Werboff with malpractice - "the doctor-patient relationship that is the basis for a malpractice claim was between defendant and plaintiff's wife, not plaintiff."

I found nothing in Judge Colabella's decision that attributed a greater duty to Dr. Werboff than to any person with herpes alleged to have infected Levine by infecting his wife. But my hunch is that the Judge was influenced by the fact that a psychiatrist has a well-known and unambiguous ethical commitment not to have sexual relations with a patient. This means that if Dr. Werboff had such a relationship with Levine's wife, he was committing a seriously unethical act quite apart from transmitting herpes.

The question of how far to extend a physician's scope of duty is challenging. If a patient on a medication falls asleep in his car and injures a pedestrian, can the injured pedestrian sue the physician? (I discussed this issue in a previous post about Coombs v Florio, a Massachusetts case.) But in the Levine case, the alleged action was a gross violation of medical ethics and a potential basis for malpractice action, should Levine's wife choose to complain. From the perspective of ethics as well as law, Judge Colabella got it right!


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