Public Health Law Map - Beta 5 - Medical and Public Health Law Site

marital disharmony.
In the classic Molien case, the physician negligently diagnosed syphilis in a
married woman. The physician then told the woman to tell her husband that he
might be infected and to come in for testing. The consequences of this negligent
diagnosis and counseling were suspicion, disharmony, and divorce. The court
found that the physician was responsible for this result and had to pay damages to
the husband for negligent infliction of mental distress. [Molien v. Kaiser Found.
Hosp., 616 P.2d 813 (Cal. 1980).] Had the physician reported the disease to the
health department and relied on it to investigate the case and to warn the husband,
the potential liability for marital distress would have been reduced or eliminated.
This case is especially interesting because the strategy of counseling patients to
warn their own contacts is often recommended for HIV-infected persons. Under
this court’s analysis, instructing an infected plaintiff to warn others and ask them to
come in for testing can leave the physician liable for any negligently inflicted
mental distress suffered by the patient’s contacts.
Such potential liability, coupled with the greater expertise of the health department
disease investigators, means that physicians should rely on the health department to
warn persons at risk. Some health departments, however, still refuse to trace and
warn the contacts of HIV carriers. In such jurisdictions, physicians are in a difficult
bind: they have a duty to warn but may be liable for consequences of negligent
warnings, delivered by either the patient or the physician. If they warn without the
patient’s consent, they also may be liable for violating the patient’s privacy. If the
state law permits the physician to warn third persons without the patient’s
permission, the physician must be careful not to disclose the disease carrier’s
identity, even if the contact clearly knows the identity and asks the physician to
confirm it. Laws allowing the physician to warn still leave the physician liable for
the consequences of a negligent warning.
The problem of warning third parties is exacerbated if a contact is a patient of the
physician, commonly the case for family physicians. Physicians who treat families
can obviate the confidentiality problem by asking patients to authorize sharing
necessary medical information with other family members. This should be done on
the first patient visit to prevent the violation of state laws requiring the physician to
protect each individual patient’s confidential information. If the patient refuses, the
physician must be careful not to violate his or her confidences. Even if the patient
agrees, which she did in the Molien case, this is no protection against negligently
inflicted harm.
5. Coercive Measures
State and federal public health laws provide the authority to restrict the liberty of
individuals to protect the public health and safety. This includes the power to isolate
individuals (quarantine), to force individuals to be immunized or treated, and to
restrict the activities in which the individual may engage. Forced quarantine has
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