Partlow Decision Shows That Maryland Closely Guards Scope of Tort Defendants’ Duty
One of the Court of Appeals’ more notable decisions from 2018 is Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607 (2018), which analyzed the scope of a Maryland tort defendant’s duty of care. The Partlow court was asked whether medical researchers at Kennedy Krieger[i] owed a duty of care not only to participants in its medical research study on lead-paint abatement but also to a participant’s sibling, who was not part of the study. With compelling arguments from both sides, the court split 4-3, holding that the researchers owed a duty to the non-participating sibling.
To find for the respondent, the court had to expand the existing scope of duty under Maryland tort law—something that it ordinarily resists doing. The majority, thus, reached an awkward compromise that ostensibly, but only incrementally, expanded the scope of a defendant’s duty. It narrowly limited its holding to medical researchers and the current household family members of their research subjects. The court’s lengthy five-pronged holding underscores its effort to contain its expansion of Maryland tort law to this case:
Here, we hold that a duty of care exists in the limited circumstances where: (1) a medical research institute knows of the presence of a child, who is not a participant in a research study concerning lead-based paint abatement of a property, who resides at a property that is subject to the research study during a participant child’s enrollment in the study; (2) the medical research institute has signed a consent agreement with a parent or guardian for a participant child’s enrollment in the research study and both the participant and non-participant children reside at a property subject to the study; (3) the medical research institute knows or should know of the presence or suspected presence of lead in the property; (4) the medical research institute determined the level of lead-based paint abatement for the property; and (5) the non-participant child who resided at the property during the research study was allegedly injured by being exposed to lead at the property.
460 Md. 607, 648–49, 191 A.3d 425 (2018). In other words, a duty exists in this case and any others that are almost exactly like it.
The Partlow decision garnered considerable attention from Maryland practitioners, in part, because Maryland courts have held firm against efforts to expand the scope of defendants’ duty of care in personal-injury actions. See Dehn v. Edgecombe, 384 Md. 606, 610, 865 A.2d 603 (2005). The Dehn court held that a family-care physician who allegedly failed to properly advise his patient after a vasectomy, thereby causing the patient’s wife’s pregnancy, did not owe the wife any duty of care because he never treated her. Id. The court so held despite the defendant’s undisputed knowledge that his patient was married and did not want any more children and other allegations that the physician had assured the husband that he was not fertile.
The Dehn court based its holding on the general premise “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.” Id. at 621. Only in exceptional circumstances could a treating physician have a duty to a non-patient. Id. The Dehn court noted a prior Maryland decision, Homer v. Long,[ii] which held that a psychiatrist, who had an affair with his married patient, owed no duty of care to the patient’s husband, even when the husband had retained the psychiatrist and given him sensitive information about their relationship. Dehn, 384 Md. at 620. In another Maryland case, Lemon v. Stewart,[iii] the court found that a physician owed no duty to the relatives of an HIV-infected patient, even though there was some risk they could be exposed to their family member’s deadly virus. Dehn, 384 Md. at 621.
Partlow’s finding of a tort duty to a non-participating sibling of a research-study participant is remarkable given Dehn’s insistence that, for physicians at least, foreseeable harm to a spouse does not automatically create a duty to the spouse. In finding—as a matter of law—no duty to Mrs. Dehn, the court emphasized that “mere foreseeability of harm or injury is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.” Id. at 624-25. The Dehn court held that a “duty of care to a non-patient is not one which Maryland law is prepared to recognize under these circumstances” because doing so would “expand traditional tort concepts beyond manageable bounds.” Id. at 627.
The Court of Appeals continued to apply the Dehn precedent to reject tort claims of the spouse of an injured employee against the employer. In Doe, the wife of a pharmaceutical scientist became infected with HIV soon after he contracted the virus through his lab work. See Doe v. Pharmacia & Upjohn Co., 388 Md. 407, 879 A.2d 1088 (2005). The Doe court found that the defendant employer had no duty to the wife, despite its knowledge that the employee was monogamously married and that he was exposed to high concentrations of the HIV virus as part of his job. Id. at 410-11. The company also knew that the employee had a “false-positive” result for HIV-1, indicative of being positive for HIV-2, which he had unknowingly contracted, and that another employee in his facility had contracted one or more lethal pathogens from work exposure. Id. at 411-12. None of this created a duty to the spouse.
Closely adhering to Dehn, the Doe court explained that it “could not find any Maryland case holding that an employer has a duty to the spouse of an employee.” 388 Md. at 417. It rejected the request to find a duty to spouses when the harm was foreseeable because Mrs. Doe’s “proposed duty of care to her would create an expansive new duty to an indeterminate class of people.” Id. at 420-21.
These decisions reflect the Maryland judiciary’s aversion to creating indeterminate classes of potential tort plaintiffs. Beyond following the Dehn precedent, the Doe court cited an older Court of Special Appeals decision, which held that an employer owed no duty to the wife of its employee, after the woman died from asbestosis, which she allegedly contracted from handling and washing her husband’s work clothing. Id. at 421-22 (citing Adams v. Owens–Illinois, 119 Md. App. 395, 705 A.2d 58 (1998)). It summarized the Adams opinion as rejecting the creation of “an overly broad notion of duty” explaining that if “liability were to rest on the wife’s handling of her husband’s clothing, the employer would owe a duty to anyone who had close contact with its employee.” Id. at 422.
The Partlow majority detailed why its narrow holding was not reversing or limiting the court’s Dehn and Doe precedents: the circumstances of those cases were fundamentally different. It emphasized that, in “those cases, the injured person and the defendant had no relationship, or even any contact, whatsoever.” 460 Md. at 661. Also, Dehn and Doe “involved sequential attenuated events where the injured individuals, in addition to having no relationship with the defendant, were not directly exposed to a negligent act.” Id.
The Partlow decision, when distinguishing Dehn and Doe, does not criticize them. The two Dehn and Doe precedents are claims by injured wives where the defendant plainly owes a duty of care to the husband. The pre-Partlow decisions also all involve significant harm. Due to the respective defendants’ purported negligence, the Doe spouse (and her husband) contracted HIV and the Dehn spouse had an unwanted pregnancy. In Adams, the wife died from asbestosis, allegedly caused by the defendant’s negligence. Yet, in none of these cases did the defendant owe a duty of care to the spouse.
Given the assurance from the Partlow majority that it was not disagreeing with these prior decisions, the Partlow decision appears to be sui generis. Despite finding a duty of care to a non-participating sibling of a participant in a medical study, the decision does not appear indicative of a significant shift in Maryland tort law on the scope of a defendant’s duty of care.
[i] For years, I have performed legal work for various Johns Hopkins entities, and The Johns Hopkins Hospital is a current client. I did not work on any stage of the Partlow case. The opinions in this article are exclusively my own and do not reflect the views of my firm or any Johns Hopkins entity.
[ii] 90 Md. App. 1, 599 A.2d 1193 (1992).
[iii] 111 Md. App. 511, 682 A.2d 1177 (1996).