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Last year, in Hardee v. Bio-Medical Applications of S.C., Inc., the Supreme Court of South Carolina took the unusual step of hearing an appeal directly from the trial court.1 The trial court in the case had granted summary judgment to the defendant medical center, concluding that South Carolina law did not recognize any legal duty by medical providers to unknown third parties.

The facts of the case involved a two car automobile accident caused when one of the drivers experienced insulin shock and lost control of the vehicle. That driver, Danny Tompkins, was a Type 1 insulin dependent diabetic. Just prior to the accident, he was treated by Bio-Medical Applications of South Carolina, Inc. d/b/a Conway Dialysis Center (“Conway Dialysis Center”). For some time, Tompkins made several trips each week to the Conway Dialysis Center to undergo hemodialysis treatment. Hemodialysis treatment involves removal of the patient’s blood in order to run it through a dialysis machine before returning it to the patient’s body. 

The court record reveals that Tompkins was familiar with his treatment and on occasion was driven to the Conway Dialysis Center by someone else. On this occasion, however, he drove himself for treatment. He was released to go home from the Center shortly after completion. Tompkins was killed in the accident. Following the accident, the driver and passenger in the other car involved in the accident filed suit against the Conway Dialysis Center, alleging negligence in releasing Tompkins to drive home without proper warning of the risks of possible low blood sugar or insulin shock following hemodialysis. Also alleged was a failure on the part of the Center to perform proper post-treatment tests or monitoring of Tompkins prior to his release. 

The trial court granted summary judgment to Conway Dialysis Center based on existing South Carolina law, which did not impose a duty to unknown third parties on medical providers. In other words, generally under South Carolina law at the time of the accident a doctor or medical provider was only subject to suit for wrongful or deficient medical treatment by the actual patient. The trial court determined that, since the plaintiffs had no relationship with the Conway Dialysis Center, no duty was owed to them by that medical provider in connection with the treatment rendered to Tompkins. The plaintiffs appealed that decision. 

Extension of the duty owed by medical providers to those other than the patients receiving treatment has been recognized in some other jurisdictions; although those were factually dissimilar situations. An exception to the general principle that a medical provider only owes a duty to its patient does exist in the context of contagious and communicable diseases.2 These decisions, however, are based in large part on the proximity between the patient and the third party to whom the expanded duty was said to be owed. In addition to the historical recognition that a physician’s relationship is often with both the patient and the patient’s family, it was explained that a “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.”3

A similar rationale has been applied in other states to determine that the same duty extends to a patient’s family member, even where the disease is not technically communicable but is known to appear in clusters — impacting family members of those infected who often also have contracted the disease.4 The South Carolina Supreme Court’s opinion goes much further, however. 

Acknowledging that it was, indeed, recognizing a new duty, the Supreme Court of South Carolina reversed the trial court’s decision. The court explained its position as follows:

We believe South Carolina tort law ought to recognize such a duty. Generally, a medical provider has a duty to warn of the dangers associated with medical treatment. Thus, a medical provider who provides treatment which it knows may have detrimental effects on a patient’s capacities and abilities owes a duty to prevent harm to patients and to reasonably foreseeable third parties by warning the patient of the attendant risks and effects before administering the treatment.5

This case represents the first time the Supreme Court of South Carolina addressed this issue directly. Though the court previously recognized some limited situations in which a physician-patient relationship may not be required to give rise to a legal action against the medical provider, these exceptions never applied to third parties wholly unknown to the medical provider.

In fact, nearly twenty years ago, Judge Bell, a former South Carolina Court of Appeals judge, explained this issue clearly in the case of Sharpe v. S.C. Dept. of Mental Health:

[T]he duty to observe appropriate standards of medical care was a duty owed to [the patient], not a duty owed to Sharpe [a third party]. Sharpe was a stranger to the treatment process. Sharpe had no relationship with the Department [medical care provider or facility] from which a duty to him could arise. His position was no different from that of any member of the general public as far as the Department was concerned. He also had no relationship with [the patient].... 

In these circumstances, even if the Department failed to observe due care in treating [the patient], there was no liability to Sharpe.... 

The plaintiff must sue in his own right for a breach of duty personal to him, and not as the vicarious beneficiary of a breach of duty to another.... 

Sharpe’s theory would overthrow settled doctrine in favor of a rule that one rendering medical services owes a duty of care not only to the patient he treats, but to the whole world. It would make doctors and hospitals liable to the Frank Smiths who happen casually on the scene as well as the Bobby Sharpes who live next door. It would create no end of liability for negligence. Such a rule would be as unwise as it is unprecedented.6 

The present case of Hardee is a sharp departure from Sharpe. Recognizing the novelty

of its decision in Hardee, the Supreme Court of South Carolina — in its unanimous decision to create this new duty — stated the following: 

This is a very narrow holding that carves out an exception to the general rule that medical providers do not owe a duty to third party non-patients. Importantly, this duty owed to third parties is identical to the duty owed to the patient, i.e., a medical provider must warn a patient of the attendant risks and effects of any treatment. Thus, our holding does not hamper the doctor-patient relationship.7 

The Hardee court went on to explain that its decision did not decide the ultimate issue whether the Conway Dialysis Center actually had the duty in this case — i.e., whether the plaintiff s were reasonably foreseeable third parties or whether the facts supported the allegation the Center failed properly to warn Tompkins: “We note, however, that we do not make the determination that Respondent owed Appellants this duty of care. The trial court granted summary judgment holding that under no factual circumstances could a duty exist. We hold that, under some circumstances, a duty can exist.”8 

Critics of the court have noted, however, that the new duty recognized in Hardee was imposed on the Conway Dialysis Center despite its creation after the conduct giving rise to the action—arguably creating a troubling precedent for medical care providers in South Carolina.

 

Endnotes

1 370 S.C. 511, 636 S.E.2d 629 (2006). 

2 See, e.g., Tenuto v. Lederle Labs., 687 N.E.2d 1300 (N.Y. Ct. App. 1997); Troxel v.A.I. Dupont Inst., 675 A.2d 314 (Pa. 1996); DiMarco v. Lynch Homes-Chester County, Inc., 559 A.2d 530 (1989). 

3 See Tenuto, 687 N.E.2d at 613 (extending duty of pediatrician beyond immediate patient to the parents of the patient in connection with the risks of parental contact polio from oral vaccination of child). 

4 See Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993) (extending duty to provide proper advice on symptoms related to Rocky Mountain Spotted Fever to wife following her husband’s death from the disease). 

5 Hardee, 370 S.C. 511, 516, 636 S.E.2d 629, 631-32 (2006) (emphasis added). 

6 Sharpe v. S.C. Dept. of Mental Health, 292 S.C. 11, 17-18, 354 S.E.2d 778, 782 (Ct. App. 1987) (Bell, J., concurring). 

7 Hardee, 370 S.C. at 516, 636 S.E.2d at 632. 

8 See Hardee, 370 S.C. at 516 n.2, 636 S.E.2d at 631 n.2

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