Medical Malpractice Claim Dismissed: Court Claims Medical Professionals Do Not Owe Duty To General Public!

Laws, Medical Malpractice Mistakes

This is occurred at the end of last year and is not exactly your typically medical malpractice case. In fact, it is really a murder case—and the murder was not done by the doctor either! The case is Fox v. Marshall and the citation to that case is 88 A.D.3d 131 (2d Dep’t 2011) if you wanted to look it up to learn more about it online.

The plaintiff in this case is the husband of a murder victim who is suing a mental health facility and a psychiatrist employed by the facility for negligence and medical malpractice. The plaintiff is also suing the defendant who committed the murder as well, who was a resident at that facility. Pertinently, the defendant had a history of substance abuse and other psychiatric conditions that might potentially make him dangerous.

What happened was the psychiatrist, after evaluating him, permitted the defendant to temporarily leave the facility to visit his mother. While away from the facility at home, the defendant purchased and consumed copious amounts of cocaine. While under the influence, the defendant broke into the victim’s house then murdered her and savagely dismembered her body. He was arrested and plead guilty.

Regarding the psychiatrist, the plaintiff is suing him saying that the psychiatrist had a duty of care owed to the general public. The defendants moved to dismiss the claim against them. This requires the court to rule on the motion. The lower court did, and the case was then appealed to the Appellate Division.

At the appeal, the psychiatrist argued that he only owed a duty SOLELY to his patient and NOT to the victim or anyone else in the public. Further, the plaintiff argued that the facility ALSO had a duty to the general public to not allow a potentially dangerous individual out of the facility and it was the facility that had to issue the pass; the physician could not do it by himself.

The Appellate Division found that the medical malpractice cause of action could NOT be asserted unless there was a direct physician-patient relationship where there is a duty of care. Moreover, as I had written about the other day, there MAY have been a medical malpractice claim if the mother was the one murdered because there was a special relationship. However, that likely would not be sustained either because it could be viewed as a superseding factor which would stop the psychiatrist from being liable. Explicitly, the court said that physicians do not owe the community at large a duty of care. DO NOTE that the Appellate Division did allow the claim against the facility to continue and that will be litigated.

But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at