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Status of Maryland Law Regarding Standing For Claims of Medical Malpractice to Third Parties

Generally, recovery in Maryland for malpractice against a physician/psychiatrist is allowed only where there is a relationship between the doctor and patient. This relationship may be established by contract, express or implied, and the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.

Complaints of malpractice and intentional infliction of emotional distress with regard to third parties have been reviewed by Maryland Courts. In the case of Dehn v. Edgecombe, 384 Md. 606 (Md. 2005), Mr. Dehn underwent a vasectomy. According to Mr. Dehn, his primary care physician advised him that he could resume engaging in unprotected intercourse with his wife without fear of pregnancy, despite the fact that requisite tests had yet to be performed. Mrs. Dehn subsequently became pregnant and sued her husband’s primary care physician, claiming that the physician had negligently counseled her husband. The Court held that there was no independent cause of action for a patient’s wife against a doctor who acted negligently while treating her husband because there was no relationship or direct interaction with the wife.

There are exceptions to this rule. For example, when a physician undertakes to act gratuitously or in an emergency situation, a duty may be created, but such exceptions are rare, particularly when the doctor never provided any treatment to the person alleging negligence. Dehn v. Edgecombe, 384 Md. 606 (Md. 2005). Therefore, this case does not appear to fall within one of these exceptions.

“The common law duty of care owed by a health care provider to diagnose, evaluate, and treat its patient ordinarily flows only to the patient, not to third parties. Thus, it has often been said that a malpractice action lies only where a health care provider-patient relationship exists and there has been a breach of a professional duty owing to the patient.” Dehn v. Edgecombe, 384 Md. 606 (Md. 2005).

The Court rejected the argument made by Mrs. Dehn that the foreseeability of harm resulted in a special relationship sufficient to impose a duty of care in the absence of a traditional tort duty. See id. at 625, 865 A.2d at 614. “A “special duty” to protect another from the acts of a third party may be established (1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.” Horridge v. St. Mary’s County Dep’t of Soc. Servs., 382 Md. 170 (Md. 2004).

Secondly, to recover in an action for intentional infliction of emotional distress, a plaintiff must show 1) conduct that is intentional or reckless, 2) conduct that is also extreme and outrageous 3) causal connection between the wrongful conduct and the emotional distress and 4) that the emotional distress is severe. Homer v. Long, 90 Md. App. 1, 599 A.2d 1193 (1992). With regard to the intention infliction of emotional distress claim, it appears that a third party must be present during the event.

For further information, please contact Steve Silverman.