Academic journal article Defense Counsel Journal

An Imminent, Unidentifiable Victim: Does HIV Require a Duty to Warn?

Academic journal article Defense Counsel Journal

An Imminent, Unidentifiable Victim: Does HIV Require a Duty to Warn?

Article excerpt

In 1995 in Reisner v. Regents of the University of California, a California Court of Appeal allowed a non-patient plaintiff to pursue a claim against a doctor for medical malpractice.(1)

Daniel Reisner's version of the story starts when Jennifer Lawson, a 12-year-old girl, received a blood transfusion in 1985. The physician, Eric Fonklesrud, and the UCLA Hospital became aware the day after the transfusion that the blood was contaminated with the human immunodeficiency virus (HIV), and they informed the donor. But they did not inform Jennifer or her parents. Dr. Fonklesrud continued to treat Jennifer for the next five years for purposes unrelated to HIV but never informed Jennifer or her parents during that period of the contaminated blood. When she was 15, Jennifer had sexual relationships with Daniel Reisner, and in 1990, five years after her blood transfusion, Jennifer was diagnosed with acquired immune deficiency syndrome (AIDS), which was determined to be a result of the 1985 transfusion. One month later, she died. Jennifer's parents informed Daniel, who on being tested was found to be infected with HIV.

The story enters the court system when Daniel sued Dr. Fonklesrud and the hospital for negligence in failing to inform Jennifer that she had been exposed to contaminated blood. Specifically, he claimed that no one had told Jennifer or her parents that she might develop AIDS, and no one had advised them about precautions Jennifer should have taken to prevent passing the virus to others. As a result, Daniel asserted, the defendants should be held liable for his injury proximately caused by this negligence, although the doctor neither treated him nor knew of his existence.

The conceptual challenge presented by this case is not that Daniel was allowed to proceed in his lawsuit. Rather it concerns the rationale applied by the court in allowing the cause of action.

In this tragic case the court applied, in part, analysis from Tarasoff v. Regents of the University of California,(2) a decision that established a therapist's duty to warn readily identifiable third parties of a threat from a dangerous patient. In Reisner, the court stated that Tarasoff dictated the result obtained because of a particular phrase used by the Tarasoff court in defining the extent of the duty to warn--a doctor has a duty to warn "others likely to apprise the victim of danger." In Reisner, the court identified the minor patient and her parents as the "others likely to apprise" the non-patient plaintiff. While the outcome of Reisner may be correct, the court's analysis is suspect.


A. Duty to Warn

Reversing the trial court, the Court of Appeal held that Daniel stated a cause of action by alleging that the defendants breached a duty to Daniel, an unidentifiable third party. In its analysis, the court emphasized the legal principles illustrated in three cases. Tarasoff, the first and most prominent of these three cases, enunciated the legal theory of failure to warn, the premise of the plaintiff's claim.

B. Tarasoff

Generally, the common law has not imposed a duty to control the conduct of another, or to warn those endangered by such conduct. However, if a defendant bears some special relationship to a dangerous person or to a potential victim, and avoiding foreseeable harm would require a defendant engage in conduct to protect or warn others, then the common law has recognized a duty.(3) Many relationships are considered special in tort law, including physician and patient and extended to psychotherapist and patient.

In Tarasoff, the Supreme Court of California developed the common law duty of a treating psychotherapist to warn others of dangers posed by a patient. The duty was derived from existing law, although not recognized explicitly prior to Tarasoff. The facts of Tarasoff illuminate the extent of the duty arising from a special relationship. …

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