Court Imposes Expanded Duty to Warn
on Residential Health Care Facility

By Elaine A. Lisko, Health Law & Policy Institute

A duty to warn third parties of the danger of a non-life threatening infection or to control the spread of infection was imposed upon a residential health care facility in Bolieu v. Sisters of Providence in Washington, decided by a divided Alaska Supreme Court on February 13, 1998.

The spouses of two nursing assistants employed by a long-term residential health care facility brought the action, complaining that they had been infected with staphylococci during visits to the facility or through contact with their wives. They alleged that the facility owed them and their families a duty of care to maintain the residential center free of staph or other infectious diseases. The nursing assistants developed skin rashes that were diagnosed and treated as staph over a two-year period. Experts who evaluated the nursing assistants differed as to whether their skin conditions were work-related. In the spouses’ personal injury action, the facility moved for and was granted summary judgment. The facility argued, in part, that health care facilities have no duty to protect non-patients from infectious agents that are routinely encountered in the general community.

The Alaska Supreme Court reversed the judgment in favor of the health care facility and remanded the action to the lower court for further proceedings. In deciding whether a duty of care exists, seven factors were examined: 1) foreseeability of harm to the plaintiff (here, the spouses); 2) degree of certainty that the plaintiff suffered injury; 3) closeness of connection between the conduct of the defendant (here, the health care facility) and the injury suffered; 4) moral blameworthiness of the defendant’s conduct; 5) policy of preventing future harm; 6) extent of burden placed upon the defendant and consequences to community where a duty with resulting liability for any breach is imposed; and 7) availability, cost and prevalence of insurance for the risk involved. The court ruled in favor of imposing a duty based on six of the seven factors, finding for the facility only on the issue of moral blameworthiness.

In holding that a duty exists, the court noted, "we are not imposing some burdensome duty to ‘protect’ persons from disease. Rather, we simply hold that the duty to take reasonable measures to minimize the spread of disease extends to spouses of employees. The degree of care which is reasonable correlates to the severity and the transmissibility of the disease at issue."

The court’s decision is significant because it extends a health care facility/employer’s liability in three major respects. First, it imposes a duty of care on the facility to protect third parties from common infections that pose no serious harm. While courts have imposed such a duty where the third party has been exposed to the AIDS virus or other dangerous infectious agents, they have not done so with relatively minor agents, like staph. Second, it allows a health care employee’s family members to recover against the employer in tort when the employee cannot. By law, the employee’s recovery is limited to workers’ compensation; and, in fact, that is all the nursing assistants received. Third, it imposes liability under circumstances previously confined to non-workplace settings. In other cases, courts have held health care providers liable to family members where the provider failed to detect or diagnose an infectious disease in the patient on the basis that family members are foreseeable plaintiffs. Arguably, the court’s decision in Bolieu extends this liability to the workplace.

The decision may be an aberration. If not, hospitals and other health care facilities will be well advised to review their disease detection and prevention policies and procedures to avoid liability for the spread of common infections to third parties who are affiliated closely with their employees and patients.