Physicians are most familiar with the concept of duty as it relates to medical malpractice actions where the physician-patient relationship creates a duty to provide reasonable care under the circumstances. The duty to provide reasonable care within the confines of the patient physician relationship has been recognized in civil law in all states for many years. In contrast, the duty that physicians may have to third parties is a relatively recent development. Emergency physicians should be familiar with the basic law of 'duty to third parties', and the types of cases where the courts have imposed a duty on the physician to keep third parties safe from harm.

The duty that physicians owe to individuals outside the physician-patient relationship falls into the realm of tort law known as negligence, not medical malpractice. Plaintiffs frequently and inappropriately initiate these actions as medical malpractice claims. No claim for negligence can succeed in the absence of any one of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; and (4) causation. As the ‘injury to third party’ tort has grown and developed, the threshold issue in every jurisdiction has been the first element; whether the physician owes a duty of care to a third party plaintiff.

As a general rule under the common or civil law, a person owes no affirmative duty, or obligation, to warn those endangered by the conduct of another. That is, at common law, there was no duty to third parties. However, based upon changing societal norms and creative lawyering, in certain situations, the law now imposes a duty upon physicians, to keep third parties safe from harm. As one judge put it, "the imposition of a legal duty reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct ."

In the recent case of Wilschinsky v. Medina (Case # 2 above), the Supreme Court of New Mexico, for the first time, faced the question of whether a practicing physician in that state owes a duty to third persons who foreseeably may be harmed by a physician's negligence in treatment of his/her patient. In grappling with the concept of whether New Mexico should overturn the longstanding common law rule regarding obligations to third parties, the Court researched the subject and had some interesting insight into modern healthcare.

The recent growth in use of outpatient clinics, day surgery units, and extensive office procedures is a new development in health care, unforeseen at the time when most state legislatures adopted malpractice legislation. It is encouraged by insurance policies that offer only partial coverage for patients admitted into hospitals overnight. As more extensive medical procedures are shifted to an outpatient setting, the risk of injuries to the general public from patients driving under the influence of drugs increases...

Changing societal conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.

This is a new body of law, with more questions than answers. A review of the legal literature reveals a very small number of cases, with just a few that specifically address the emergency department or the outpatient setting. The cases have fallen into four general categories:

• Contagious Disease Transmission
  
• Intended Victims of Violent Crimes
  
• Victims of Auto Accidents - Duty to the Driving Public
  
• Miscellaneous
  

It is important to recognize that each state creates its own case law. In writing opinions, the state judges review cases from all over the country, especially now, as the tort is still in its infancy. However, one state’s Supreme Court decisions have no direct bearing on the practice of emergency medicine in another state