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Another well-established predicate for extending a physician's duty of care to third parties is when 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.
Plaintiff Dominick and Elizabeth Tenuto presented their five-month-old daughter to Dr. Leroy L. Schwartz, for a second dosage of an oral poliomyelitis vaccine manufactured by defendant Lederle Laboratories. Plaintiff Dominick contracted polio from his infant daughter. Plaintiffs subsequently brought an action against defendants, Dr. Schwartz and Lederle Laboratories. The trial court had dismissed the parents' complaint, holding that their claim was based upon the doctor's failure to obtain the statutory informed consent, which claim did not lie because the parents were not the doctor's patients. The Appellate Division of the Supreme Court of New York affirmed. The parents appealed.
Was the claim of the parents solely based upon the doctor’s failure to obtain the statutory informed consent, and therefore, properly dismissed because the parents were not the doctor’s patients?
The court reversed the judgment of the trial court, holding that the court’s reasoning was too restrictive a reading of the parents' allegations in the complaint. Rather, the parents alleged, under common-law principles of negligence and malpractice, that the doctor had a duty to comply with the recommendations of the vaccine manufacturer to warn them of their personal health risks from the vaccination of their infant daughter, to assess the particular vulnerabilities of the parents to those risks, and to advise the parents of precautions to avoid or minimize them. The court recognized that decisional law had extended a doctor's duty of care to members of the household, especially where a contagious disease was involved. Further, it was inferable that the doctor knew or should have known that his services brought into play the protection of the health of the parents as he had been informed that the husband was to have surgery, which made him vulnerable to contact polio.